united states court of appeals for the ninth...

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

GEORGE K. YOUNG, JR.,Plaintiff-Appellant,

v.

STATE OF HAWAII; NEIL

ABERCROMBIE, in his capacity asGovernor of the State of Hawaii;DAVID MARK LOUIE I, Esquire, inhis capacity as State AttorneyGeneral; COUNTY OF HAWAII, as asub-agency of the State of Hawaii;WILLIAM P. KENOI, in his capacity asMayor of the County of Hawaii;HILO COUNTY POLICE DEPARTMENT,as a sub-agency of the County ofHawaii; HARRY S. KUBOJIRI, in hiscapacity as Chief of Police; JOHN

DOES, 1–25; JANE DOES, 1–25; DOE

CORPORATIONS, 1–5; DOE ENTITIES,1–5,

Defendants-Appellees.

No. 12-17808

D.C. No.1:12-cv-00336-

HG-BMK

OPINION

YOUNG V. STATE OF HAWAII2

Appeal from the United States District Courtfor the District of Hawaii

Helen W. Gillmor, District Judge, Presiding

Argued and Submitted En Banc September 24, 2020San Francisco, California

Filed March 24, 2021

Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.O’Scannlain, M. Margaret McKeown, Kim McLane

Wardlaw, William A. Fletcher, Richard R. Clifton, Jay S.Bybee, Consuelo M. Callahan, Sandra S. Ikuta, Michelle T.

Friedland and Ryan D. Nelson, Circuit Judges.

Opinion by Judge Bybee;Dissent by Judge O’Scannlain;

Dissent by Judge R. Nelson

YOUNG V. STATE OF HAWAII 3

SUMMARY*

Civil Rights

The en banc court affirmed the district court’s dismissalof an action challenging Hawai‘i’s firearm licensing law,Hawai‘i Revised Statutes § 134-9(a), which requires thatresidents seeking a license to openly carry a firearm in publicmust demonstrate “the urgency or the need” to carry afirearm, must be of good moral character, and must be“engaged in the protection of life and property.”

Appellant George Young applied for a firearm-carrylicense twice in 2011, but failed to identify “the urgency orthe need” to openly carry a firearm in public. Instead, Youngrelied upon his general desire to carry a firearm for self-defense. Both of Young’s applications were denied. Youngbrought a challenge to Hawai‘i’s firearm-licensing law underthe Second Amendment and the Due Process Clause of theFourteenth Amendment. The district court upheld Hawai‘i’sstatute.

The en banc court first held that the scope of its reviewwould be limited to Young’s facial challenge to HRS § 134-9. There was no need to determine whether Hawai‘i Countyproperly applied § 134-9, because Young did not bring an as-applied challenge.

The en banc court noted that this Court has previouslyheld that individuals do not have a Second Amendment right

* This summary constitutes no part of the opinion of the court. It hasbeen prepared by court staff for the convenience of the reader.


to carry concealed weapons in public. Peruta v. County ofSan Diego, 824 F.3d 919 (9th Cir. 2016) (en banc). Thequestion presented in this case, accordingly, was limited towhether individuals have a right to carry weapons openly inpublic. To answer that question, and consistent with theSupreme Court’s decisions in District of Columbia v. Heller,554 U.S. 570 (2008), and McDonald v. City of Chicago,561 U.S. 742 (2010), the en banc court first consideredwhether Hawai‘i’s law affects conduct protected by theSecond Amendment.

After careful review of the history of early English andAmerican regulation of carrying arms openly in the publicsquare, the en banc court concluded that Hawai‘i’srestrictions on the open carrying of firearms reflectlongstanding prohibitions, and therefore, the conduct theyregulate is outside the historical scope of the SecondAmendment. The en banc court held that the SecondAmendment does not guarantee an unfettered, general rightto openly carry arms in public for individual self-defense. Accordingly, Hawai‘i’s firearms-carry scheme is lawful.

The en banc court rejected Young’s argument that HRS§ 134-9 is invalid as a prior restraint because it vests chiefs ofpolice with unbridled discretion to determine whether apermit is issued. Joining its sister circuits, the en banc courtheld that the prior restraint doctrine does not apply to SecondAmendment challenges to firearm-licensing laws.

The en banc court also rejected, as premature, Young’sdue process argument that HRS § 134-9 does not provideadequate process to challenge the denial of a carry-permitapplication. The en banc court noted that Young did notseek review under HRS § 91-9 before bringing suit. So,


Hawai‘i has not yet denied him the opportunity for appellatereview. Because Young has not actually been denied ahearing, his procedural due process claim was speculative,and there was no need to reach it.

Dissenting, Judge O’Scannlain, joined by JudgesCallahan, Ikuta, and R. Nelson, would hold that both HRS§ 134-9 and the 1997 County regulation destroy the core rightto carry a gun for self-defense outside the home and areunconstitutional under any level of scrutiny. JudgeO’Scannlain stated that the majority holds that while theSecond Amendment may guarantee the right to keep afirearm for self-defense within one’s home, it provides noright whatsoever to bear—i.e., to carry—that same firearmfor self-defense in any other place. In his view, themajority’s decision undermines not only the Constitution’stext, but also half a millennium of Anglo-American legalhistory, the Supreme Court’s decisions in District ofColumbia v. Heller, 554 U.S. 570 (2008), and McDonald v.City of Chicago, 561 U.S. 742 (2010), and the foundationalprinciples of American popular sovereignty itself.

Dissenting, Judge R. Nelson, joined by Judges Callahanand Ikuta, concurred with Judge O’Scannlain’s dissentconcluding that Hawaii Revised Statute 134-9 violates theSecond Amendment. Judge R. Nelson wrote that the majorityerred not only in holding the statute facially constitutional,but also in rejecting Young’s as-applied challenge. He alsowrote separately to highlight the brazenly unconstitutionalCounty of Hawaii Regulations applying HRS § 134-9, statingthat there should be no dispute that any law or regulation thatrestricts gun ownership only to security guards violates theSecond Amendment.


COUNSEL

Alan Alexander Beck (argued), San Diego, California;Stephen D. Stamboulieh, Stamboulieh Law PLLC, Madison,Mississippi; for Plaintiff-Appellant.

Neal Kumar Katyal (argued), Colleen E. Roh Sinzdak,Mitchell P. Reich, and Sundeer Iyer, Hogan Lovells US LLP,Washington, D.C.; Clare E. Connors, Attorney General;Kimberly T. Guidry, Solicitor General; Robert T. Nakatsujiand Kaliko‘Onalani D. Fernandes, Deputy Solicitors General;Department of the Attorney General, Honolulu, Hawaii;Joseph K. Kamelamela, Corporation Counsel; Laureen L.Martin, Litigation Section Supervisor; D. Kaena Horowitz,Melody Parker, Christopher P. Schlueter, Michael J. Udovic,and Kimberly K. Angay, Deputies Corporation Counsel;Office of the Corporation Counsel, Hilo Hawaii; forDefendants-Appellees.

Girard D. Lau, former Solicitor General; Kimberly T. Guidry,Solicitor General; Robert T. Nakatsuji, Deputy SolicitorGeneral; Department of the Attorney General, Honolulu,Hawaii; for Amicus Curiae State of Hawaii.

Deepak Gupta and Jonathan E. Taylor, Gupta Wessler PLLC,Washington, D.C.; Eric Tirschwell and Mark AnthonyFrassetto, Everytown for Gun Safety Support Fund, NewYork, New York; Janet Carter, William J. Taylor Jr., and LisaM. Ebersole, Everytown Law, New York, New York; forAmicus Curiae Everytown for Gun Safety.

Simon J. Frankel, Covington & Burling LLP, San Francisco,California; Paulina K. Slagter, Covington & Burling LLP,Los Angeles, California; J. Adam Skaggs and David Pucino,


Giffords Law Center to Prevent Gun Violence, New York,New York; Hannah Shearer, Giffords Law Center to PreventGun Violence, San Francisco, California; for Amicus CuriaeGiffords Law Center to Prevent Gun Violence.

Gurbir S. Grewal, Attorney General; Andrew J. Bruck,Executive Assistant Attorney General; Jeremy M.Feigenbaum, Assistant Attorney General; Claudia JoyDemitro, Adam D. Klein and Tim Sheehan, Deputy AttorneysGeneral; Attorney General’s Office, Trenton, New Jersey;Xavier Becerra, Attorney General, Sacramento, California;William Tong, Attorney General, Hartford, Connecticut;Matthew P. Denn, Attorney General, Wilmington, Delaware;Kwame Raoul, Attorney General, Chicago, Illinois; TomMiller, Attorney General, Des Moines, Iowa; Maura Healey,Attorney General, Boston, Massachusetts; Brian E. Frosh,Attorney General, Baltimore, Maryland; Letitia James,Attorney General, New York, New York; Ellen F.Rosenblum, Attorney General, Salem, Oregon; Peter F.Neronha, Attorney General, Providence, Rhode Island; MarkR. Herring, Attorney General, Richmond, Virginia; Karl A.Racine, Attorney General, Washington, D.C.; for AmiciCuriae New Jersey, California, Connecticut, Delaware,Illinois, Iowa, Massachusetts, Maryland, New York, Oregon,Rhode Island, Virginia, and the District of Columbia.

Xavier Becerra, Attorney General; Michael J. Mongan,Solicitor General; Thomas S. Patterson, Senior AssistantAttorney General; Samuel P. Siegel and Helen H. Hong,Deputy Solicitors General; Jonathan M. Eisenberg and P.Patty Li, Deputy Attorneys General; Department of Justice,Sacramento, California; for Amicus Curiae State ofCalifornia.


John W. Dillon, Gatzke Dillon & Ballance LLP, Carlsbad,California, for Amicus Curiae San Diego County GunOwners Political Action Committee.

Richard L. Holcomb, Holcomb Law LLLC, Honolulu,Hawaii, for Amicus Curiae Hawai‘i Rifle Association.

Donald L. Wilkerson, Laupahoehoe, Hawaii, for AmicusCuriae Hawaii Firearms Coalition.

Herbert W. Titus, Robert J. Olson, William J. Olson, andJeremiah L. Morgan, William J. Olson P.C., Vienna,Virginia; Joseph W. Miller, Restoring Liberty ActionCommittee, Fairbanks, Alaska; for Amici Curiae Gun Ownersof America, Gun Owners Foundation, Heller Foundation,Virginia Citizens Defense League, Conservative LegalDefense and Education Fund, and Restoring Liberty ActionCommittee.

David G. Sigale, Law Firm of David G. Sigale P.C., GlenEllyn, Illinois, for Amicus Curiae Second AmendmentFoundation.

Donald E. J. Kilmer Jr., Law Offices of Donald Kilmer APC,San Jose, California, for Amici Curiae Madison Society Inc.Calguns Foundation, Firearms Policy Coalition Inc., andFirearms Policy Foundation.

John Cutonilli, Garrett Park, Maryland, pro se AmicusCuriae.

Neal Goldfarb, Washington, D.C., pro se Amicus Curiae.


Adita Dynar and Mark Chenoweth, New Civil LibertiesAlliance, Washington, D.C., for Amicus Curiae New CivilLiberties Alliance.

Jeff Landry, Attorney General; Elizabeth Baker Murrill,Solicitor General; Josiah M. Kollmeyer, Assistant SolicitorGeneral; Department of Justice, Baton Rouge, Louisiana;Steven T. Marshall, Attorney General, Alabama; MarkBrnovich, Attorney General, Arizona; Leslie Rutledge,Attorney General, Arkansas; Christopher M. Carr, AttorneyGeneral, Georgia; Lawrence G. Wasden, Attorney General,Idaho; Aaron Negangard, Chief Deputy Attorney General,Indiana; Derek Schmidt, Attorney General, Kansas; DanielCameron, Attorney General, Kentucky; Lynn Fitch, AttorneyGeneral, Mississippi; Timothy C. Fox, Attorney General,Montana; Douglas J. Peterson, Attorney General, Nebraska;Wayne Stenehjem, Attorney General, North Dakota; DaveYost, Attorney General, Ohio; Mike Hunter, AttorneyGeneral, Oklahoma; Alan Wilson, Attorney General, SouthCarolina; Jason Ravnsborg, Attorney General, South Dakota;Ken Paxton, Attorney General, Texas; Sean D. Reyes,Attorney General, Utah; Patrick Morrisey, Attorney General,West Virginia; for Amici Curiae States of Louisiana,Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana,Kansas, Kentucky, Mississippi, Montana, Nebraska, NorthDakota, Ohio, Oklahoma, South Carolina, South Dakota,Texas, Utah, and West Virginia.

Dan Jackson, Special Deputy Corporation Counsel, KekerVan Nest & Peters LLP, San Francisco, California, for AmiciCuriae City and County of Honolulu, County of Kaua‘i, andCounty of Maui.


Brian R. Matsui and Samuel B. Goldstein, Morrison &Foerster LLP, Washington, D.C.; Jamie A. Levitt and JanieC. Buckley, Morrison & Foerster LLP, New York, NewYork; for Amici Curiae Corpus Linguistics Professors andExperts.

Michael T. Jean, National Rifle Association of America—Institute for Legislative Action, Fairfax, Virginia, for AmicusCuriae National Rifle Association of America.

Matthew J. Silveira, Jones Day, San Francisco, California, forAmici Curiae Social Scientists and Public HealthResearchers.

Mark D. Selwyn, Wilmer Cutler Pickering Hale and DorrLLP, Palo Alto, California; Nicholas G. Purcell, WilmerCutler Pickering Hale and Dorr LLP, Los Angeles,California; for Amici Curiae Professors of History and Law.

Antonio J. Perez-Marques, Sushila Rao Pentapati, VictorObasaju, Korey Boehm, and Thomas Dec, Davis Polk &Wardwell LLP, New York, New York, for Amicus CuriaeProsecutors Against Gun Violence.

Joseph G.S. Greenlee, Firearms Policy Coalition,Sacramento, California; David B. Kopel, IndependenceInstitute, Denver, Colorado; for Amici Curiae Professors ofSecond Amendment Law, Firearms Policy Coalition,Firearms Policy Foundation, Cato Institute, Madison SocietyFoundation, California Gun Rights Foundation, SecondAmendment Foundation, and Independence Institute.

C.D. Michel, Sean A. Brady, and Matthew D. Cubeiro,Michel & Associates P.C., Long Beach, California; James


Hochberg, James Hochberg Attorney at Law LLLC,Honolulu, Hawaii; for Amici Curiae Hawaii RifleAssociation, California Rifle & Pistol Association Inc., andGun Owners of California.

Mark M. Murakami, Damon Key Leong Kupchak Hastert,Honolulu, Hawaii; Jonathan Lowy, Kelly Sampson, andChrista Nichols, Brady, Washington, D.C.; for Amicus CuriaeBrady.


OPINION

TABLE OF CONTENTS

I. BACKGROUND AND PROCEEDINGS . . . . . . . . . 15A. Hawai‘i’s Licensing Scheme. . . . . . . . . . . . . . . . . 15

1. History of Firearm Regulation in Hawai‘i . . . 152. Hawai‘i’s Current Scheme . . . . . . . . . . . . . . . 18

a. The statute . . . . . . . . . . . . . . . . . . . . . . . . . 18b. The County of Hawai‘i’s regulations . . . . 19c. Hawai‘i Attorney General Opinion

Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21B. Facts and Proceedings . . . . . . . . . . . . . . . . . . . . . 22

II. THE STANDARDS FOR OUR REVIEW . . . . . . . . . 25A. Standards of Review of Law and Fact . . . . . . . . . 25B. Scope of Our Review . . . . . . . . . . . . . . . . . . . . . . . 25C. Substantive Standards for the Second

Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311. Heller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312. Our Post-Heller Framework . . . . . . . . . . . . . . 34

III. PUBLIC CARRY OF FIREARMS AND THESCOPE OF THE SECOND AMENDMENT . . . . . . . 36A. The English Right to Bear Arms in Public

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401. The Royal Decrees . . . . . . . . . . . . . . . . . . . . . 402. The Statute of Northampton . . . . . . . . . . . . . . 43

a. The statute . . . . . . . . . . . . . . . . . . . . . . . . . 43b. Enforcement . . . . . . . . . . . . . . . . . . . . . . . 47c. Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49d. Treatises . . . . . . . . . . . . . . . . . . . . . . . . . . 52

3. The English Bill of Rights . . . . . . . . . . . . . . . 55B. Colonial Restrictions on the Right to Bear

Arms in Public . . . . . . . . . . . . . . . . . . . . . . . . . . . 56


C. Post Second Amendment Restrictions on theRight to Bear Arms . . . . . . . . . . . . . . . . . . . . . . . . 621. Post-Ratification Restrictions . . . . . . . . . . . . . 642. Nineteenth-Century Restrictions

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65a. The statutes . . . . . . . . . . . . . . . . . . . . . . . . 65b. The cases . . . . . . . . . . . . . . . . . . . . . . . . . . 73c. Treatises . . . . . . . . . . . . . . . . . . . . . . . . . . 87

3. Twentieth-Century Restrictions . . . . . . . . . . . 92D. The Power to Regulate Arms in the Public

Square . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 961. The Basic Rule . . . . . . . . . . . . . . . . . . . . . . . . 962. The Exceptions . . . . . . . . . . . . . . . . . . . . . . . 107

a. Classes of persons. . . . . . . . . . . . . . . . . . 107b. Places . . . . . . . . . . . . . . . . . . . . . . . . . . . 108c. Licensing and good-cause requirements 108d. Surety . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

E. Response to the Dissent . . . . . . . . . . . . . . . . . . . 113F. Application to HRS § 134-9 . . . . . . . . . . . . . . . . 122

IV. OTHER CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . . . 123A. Prior Restraint . . . . . . . . . . . . . . . . . . . . . . . . . . 124B. Procedural Challenge . . . . . . . . . . . . . . . . . . . . . 126

V. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127


BYBEE, Circuit Judge:

The State of Hawai‘i requires its residents to obtain alicense to carry a firearm in public. To satisfy the statutoryrequirements for an open-carry license, residents mustdemonstrate “the urgency or the need” to carry a firearm,must be of good moral character, and must be “engaged in theprotection of life and property.” Appellant George Youngapplied for a firearm-carry license twice in 2011, but failed toidentify “the urgency or the need” to openly carry a firearmin public. Instead, Young relied upon his general desire tocarry a firearm for self-defense. Both of Young’sapplications were denied. Young brought a facial challengeto Hawai‘i’s firearm-licensing law under the SecondAmendment and the Due Process Clause of the FourteenthAmendment. The district court upheld Hawai‘i’s statute.

We have previously held that individuals do not have aSecond Amendment right to carry concealed weapons inpublic. Peruta v. County of San Diego, 824 F.3d 919 (9thCir. 2016) (en banc). The question presented in this case iswhether individuals have a right to carry weapons openly inpublic. In order to answer that question, and consistent withthe Supreme Court’s decisions in District of Columbia v.Heller, 554 U.S. 570 (2008), and McDonald v. City ofChicago, 561 U.S. 742 (2010), we ask, first, whetherHawai‘i’s law affects conduct protected by the SecondAmendment. If so, we then determine if the law can survivethe appropriate level of scrutiny. After careful review of thehistory of early English and American regulation of carryingarms openly in the public square, we conclude that Hawai‘i’srestrictions on the open carrying of firearms reflectlongstanding prohibitions and that the conduct they regulateis therefore outside the historical scope of the Second


Amendment. Accordingly, Hawai‘i’s firearms-carry schemeis lawful. We affirm the judgment of the district court.

I. BACKGROUND AND PROCEEDINGS

A. Hawai‘i’s Licensing Scheme

1. History of Firearm Regulation in Hawai‘i

Hawai‘i law began limiting public carriage of dangerousweapons, including firearms, more than 150 yearsago—nearly fifty years before it became a U.S. territory andmore than a century before it became a state. Hawai‘ienacted its first statutory regulation of public carry in 1852. The aptly named “Act To Prevent the Carrying of DeadlyWeapons” recognized that “the habit of carrying deadlyweapons is dangerous to life and the public peace.” Act ofMay 25, 1852, 1852 Haw. Sess. Laws 19. To combat thoserisks, Hawai‘i’s pre-territorial legislative council prescribedfines and imprisonment for “[a]ny person not authorized bylaw, who shall carry, or be found armed with, any bowie-knife, sword-cane, pistol, air-gun, slung-shot or other deadlyweapon.” Id. § 1. The Act of May 25, 1852 categoricallyexempted certain professionals “authorized to bear arms,”such as those “holding official, military, or naval rank . . .when [the firearm was] worn for legitimate purposes.” Id.§ 2.

Hawai‘i’s regulation of dangerous weapons remained ineffect after Hawai‘i consented to annexation as a U.S.territory in 1898. Under the Newlands Resolution, “[t]hemunicipal legislation of the Hawaiian Islands . . . notinconsistent with this joint resolution nor contrary to theConstitution of the United States nor to any existing treaty of


the United States, shall remain in force until the Congress ofthe United States shall otherwise determine.” Resolution ofJuly 7, 1898, 30 Stat. 750. See Territory of Hawai‘i v.Mankichi, 190 U.S. 197, 209 (1903). Hawai‘i’s territoriallegislature renewed its 1852 limitations on the carrying ofdangerous weapons in a 1905 Act, as amended in 1913. Haw.Rev. Laws, ch. 209, § 3089 (1905), as amended 1913 Haw.Sess. Laws 25, act 22, § 1. Like its predecessors, the 1913statute made it unlawful to carry deadly weapons unless“authorized by law.” Id. The statute imposed civil andcriminal penalties on anyone who carried a “deadly weapon”without prior authorization “unless good cause be shown forhaving such dangerous weapon.” Id.

In 1927, Hawai‘i implemented its first restriction onfirearms specifically, as opposed to restrictions on the broaderclass of “deadly weapons.” In a section entitled “Carrying orkeeping small arms by unlicensed person,” the law provided:

Except as otherwise provided in Sections 7and 11 hereof in respect of certain licensees,no person shall carry, keep, possess or haveunder his control a pistol or revolver;provided, however, that any person who shallhave lawfully acquired the ownership orpossession of a pistol or revolver may, forpurposes of protection and with or without alicense, keep the same in the dwelling houseor business office personally occupied by him,and, in the case of an unlawful attack uponany person or property in said house or office,said pistol or revolver may be carried in anylawful, hot pursuit of the assailant.


Act 206, § 5, 1927 Haw. Sess. Laws 209, 209–211. The 1927Act, which was modeled in part on the Uniform Firearms Act,required a person to obtain a license to carry a “pistol orrevolver concealed upon his person or to carry one elsewherethan in his home or office.” Id. § 7. Carry licenses could beissued by the sheriff or a sitting judge after either haddetermined that applicant was “suitable . . . to be so licensed.” Id. An applicant was deemed “suitable” to carry a firearmupon meeting a citizenship and age requirement and showinga “good reason to fear an injury to his person or property, or. . . other proper reason for carrying a pistol or revolver.” Id.

In 1933, the Hawai‘i legislature further refined itsconcealed-carry licensing scheme. Act 26, § 8, 1933–1934Haw. Sess. Laws Spec. Sess. 35, 39. To carry a concealedweapon, the applicant had to demonstrate an “exceptionalcase” and a “good reason to fear injury to his person orproperty.” Id.

The “exceptional case” and “good reason to fear injury”requirements included in the 1933 Act became staples ofHawai‘i’s future firearm regulations. The Hawai‘i legislatureincluded those requirements in its 1961 Act “Relating toPermits to Carry Firearms.” Act 163, 1961 Haw. Sess. Laws215. The 1961 regulations mirrored those in the 1933 statuteand required an applicant to demonstrate an “exceptionalcase” and a “good reason [for the applicant] to fear injury tohis person or property” before publicly carrying a firearm. Id.§ 1. Whereas the 1933 Act only applied to concealed carry,however, the 1961 Act announced a new regulatory schemefor open carry. An individual seeking to carry a firearmopenly in public was required to demonstrate “the urgency ofthe need” to carry and must be “engaged in the protection oflife and property.” Id. If the applicant made such a showing


and was not otherwise prohibited from possessing a firearm,the chief of police had discretion to grant the carryapplication. Id. (“[T]he respective chiefs of police may granta license . . . .”).

2. Hawai‘i’s Current Scheme

a. The statute. Hawai‘i’s current scheme allowsindividuals to possess firearms under a variety ofcircumstances. First, individuals who are not members of lawenforcement, the armed forces, or certain federal agencies andwish to carry firearms in places outside of their homes, placesof business or sojourns must obtain a license from the countychief of police. Hawai‘i Revised Statutes (HRS) § 134-9(a). Second, individuals may possess firearms in their homes,places of business, and sojourns. Id. § 134-23. Third,persons who are authorized by their public employers,including law enforcement, the armed forces, and certainfederal agencies, are exempt from other restrictions and maycarry in public. Id. § 134-11(a). Fourth, any person, sixteenyears or older “may carry and use any lawfully acquired rifleor shotgun and suitable ammunition while actually engagedin hunting or target shooting.” Id. § 134-5(a). Additionally,“[a] person may carry unconcealed and use a lawfullyacquired pistol or revolver while actually engaged in huntinggame mammals.” Id. § 134-5(c).

Hawai‘i’s public carry licensing scheme is substantiallythe same today as it was in 1961. Hawai‘i continues todistinguish between concealed carry and open carry, althoughit is not clear that the difference is particularly significant. Toobtain a concealed carry license from a county chief ofpolice, a person must first show “an exceptional case” and a“reason to fear injury to [his or her] person or property.”


HRS § 134-9(a). As to open carry, the statute states inrelevant part:

Where the urgency or the need has beensufficiently indicated, the respective chief ofpolice may grant to an applicant of goodmoral character who is a citizen of the UnitedStates of the age of twenty-one years or more,is engaged in the protection of life andproperty, and is not prohibited under section134-7 from the ownership or possession of afirearm, a license to carry a pistol or revolverand ammunition therefor unconcealed on theperson within the county where the license isgranted.

Id. Many of the statute’s requirements are objective. Forinstance, whether the applicant meets the citizenship, age, orlegal-ownership requirements may be determined by thereviewing chief of police by a simple review of theapplication and law enforcement databases. On the otherhand, “the urgency or the need” for the license and theapplicant’s participation in “the protection of life andproperty” appear to be subjective requirements notdiscoverable by reference to a law enforcement database.

b. The County of Hawai‘i’s regulations. In October1997, the County of Hawai‘i—where Young lives and wherehe applied for several carry permits—promulgated county-wide rules to evaluate permit applications under § 134-9. SeeHRS § 91-3 (detailing the rule-making process for countyboards, county commissions, and other agencies authorizedby law to make rules). These “Rules and RegulationsGoverning the Issuance of Licenses to Carry Concealed and


Unconcealed Weapons” outline the process the chief of policewould follow in reviewing carry applications under § 134-9.

The county regulation imposed different rules forconcealed arms and for unconcealed arms consistent with§ 134-9’s bifurcation, but a brief review of the regulationsreveals several inconsistencies between the state statute andthe county’s administration. At the outset, it is clear thatHawai‘i County’s regulations are more demanding than§ 134-9. For instance, the regulations seem to consider open-carry permit applications to be available only to “privatedetectives and security guards.” In fact, the first subheadingreads “Rules and Regulations Governing the Carrying ofConcealed Weapons and the Carrying of Weapons by PrivateDetectives and Security Guards.” The regulation alsoprovides the chief of police a mechanism by which to cancela previously issued carry permit upon termination of theapplicant’s employment. Meanwhile, § 134-9 does notimpose a professional requirement on the applicant, nor doesit distinguish between applications by security guards andapplications by other citizens.

The county regulation also applies to a broader class ofweapons than does § 134-9. Whereas § 134-9 applies only tothe public carry of “a pistol or revolver and ammunitiontherefor,” the county regulation defines “firearm” to include“rifles, shotguns, automatic firearms, noxious gas projectors,mortars, bombs, and cannon[s].” Section 134-9 did notcontemplate any of those classes of arms. Similarly, thecounty regulation also applies to non-firearm “weapons” thatcould be concealed on the person, including “knives,blackjacks, batons, night sticks, and chemical agents designedto temporarily subdue or incapacitate a person.” Again,§ 134-9 is silent on such weapons.


c. Hawai‘i Attorney General Opinion Letter. After thislitigation began, the Hawai‘i Attorney General issued aformal opinion interpreting § 134-9’s requirements andclarified that § 134-9 does not reserve open-carry permits tosecurity guards. See State of Haw., Dep’t of the Att’y Gen.,Opinion Letter No. 18-1, Availability of Unconcealed-CarryLicenses (Sept. 11, 2018) (https://ag.hawaii.gov/wp-content/uploads/2018/09/AG-Opinion-No.-18-1.pdf) (Att’y Gen.Letter). The Attorney General unequivocally rejectedHawai‘i County’s interpretation that an open-carry permitapplicant must demonstrate a professional need to carry, suchas being a private investigator or security guard. Id. at 3–4. The Attorney General concluded that such a showing wouldbe inconsistent with § 134-9, which “does not limitunconcealed-carry licenses to individuals employed as privatesecurity officers.” Id. at 6. All that the statute requires is thatthe applicant (1) meet the objective qualifications; (2) be ofgood moral character; (3) demonstrate “sufficient need”; and(4) present no other reason to be disqualified. Id. at 6–7.

According to the Attorney General’s Opinion Letter, anapplicant’s need is “sufficient” if it is urgent and is related to“engage[ment] in the protection of life and property.” Id. at 7(citing HRS § 134-9). The urgency requirement “connote[s]an immediate, pressing, and heightened interest in carrying afirearm.” Id. at 8. Coupled with the requirement that theapplicant be “engaged in the protection of life and property,”an applicant must demonstrate more than a “generalizedconcern for safety.” Id.; see also id. at 7 (noting that thestatute only requires an applicant to show a need for armedself-defense “that substantially exceeds the need possessed byordinary law-abiding citizens”) (citing Drake v. Filko,724 F.3d 426, 428 & n.2 (3d Cir. 2013)). The AttorneyGeneral provided several examples of applicants who would


plausibly qualify for an open-carry license regardless of theirprofession.1

The Attorney General’s Opinion Letter did not repealHawai‘i County’s regulations, but its interpretation of statelaw is considered “highly instructive.” See Kepo<o v. Watson,952 P.2d 379, 387 n.9 (Haw. 1998). And even without theAttorney General’s clarification, the statute—not the county’sregulation—would control. See Ruggles v. Yagong, 353 P.3d953, 964 (Haw. 2015) (citing HRS § 46-1.5(13)) (Hawai‘ilaw “authorizes county ordinances ‘to protect health, life, andproperty . . .’ as long as they are ‘not inconsistent with’” statelaw.). Further, each of Hawai‘i’s other counties agree that§ 134-9 does not require consideration of an applicant’sprofession when evaluating a carry-permit application. SeeBrief of City and County of Honolulu, et. al., as Amici Curiae4–6 (“The Attorney General’s interpretation of section 134-9,HRS, comports with [Honolulu, Kaua‘i, and Maui] Counties’past and current practice[s].”).

B. Facts and Proceedings

George Young wishes to carry a firearm inpublic—concealed or unconcealed—but does not fall into oneof Hawai‘i’s categorical exceptions for law enforcement andmilitary personnel. In 2011, Young applied twice for alicense in the County of Hawai‘i. In both applications,Young cited a general need for “personal security, self-preservation and defense, and protection of personal family

1 This non-exhaustive list included: (1) a victim of domestic abusewhose former spouse has violated protective orders; (2) a victim ofstalking with credible threats of bodily harm; and (3) a witness to a crimewho has received credible threats to her safety. Att’y Gen. Letter at 8.


members and property.” Hawai‘i County police chief, HenryKubojiri, denied both of Young’s applications. ChiefKubojiri determined that Young had neither shown an“exceptional case[] or demonstrated urgency.”

In 2012 Young filed a pro se complaint under 42 U.S.C.§ 1983 against the State of Hawai‘i, the governor, theattorney general, the County of Hawai‘i, the mayor of theCounty of Hawai‘i, the Hilo County Police Department, theCounty of Hawai‘i chief of police, and unnamed persons andcorporations.2 He brought separate counts under the Bill ofAttainder Clause, the Contracts Clause, the SecondAmendment, the Ninth Amendment, and the Privileges orImmunities and Due Process Clauses of the FourteenthAmendment. Young asked for the permanent enjoining ofHRS § 134, the issuance of a permit, and compensatory andpunitive damages.

The district court dismissed all of Young’s claims in apublished order. Young v. Hawai‘i, 911 F. Supp. 2d 972(D. Haw. 2012). Although the district court dismissedYoung’s claims on various grounds, the only groundsrelevant here relate to his Second Amendment and DueProcess claims; his other claims have been abandoned onappeal. With respect to the Second Amendment, the districtcourt first determined that Hawai‘i’s firearm licensingscheme did not implicate conduct that is protected by theSecond Amendment. Young, 911 F. Supp. 2d at 987–91. Looking to “[t]he weight of authority in the Ninth Circuit,other Circuits, and state courts,” the district court concluded

2 Young has filed two prior actions. See Young v. Hawai‘i, 73 Fed.R. Serv. 3d 1635 (D. Haw. 2009); Young v. Hawai‘i, 548 F. Supp. 2d 1151(D. Haw. 2008). Both actions were dismissed.


that “Heller and McDonald establish[] only a narrowindividual right to keep an operable handgun at home for self-defense.” Id. at 989. Because Hawai‘i’s law permitsindividuals to possess firearms in the home and in a place ofbusiness, HRS § 134-9 did not impose on a right protected bythe Second Amendment. Id. at 989–90.

Alternatively, the district court found that even ifHawai‘i’s statute implicated conduct protected by the SecondAmendment, the statute would survive intermediateconstitutional scrutiny. Id. at 991–92. The district courtdetermined that Hawai‘i’s law “protects an important andsubstantial interest in safeguarding the public from theinherent dangers of firearms.” Id. at 991. And becauseHawai‘i’s law did not burden in-home possession of firearmsand was not an outright ban on the firearms, the district courtconcluded that Hawai‘i’s restrictions reasonably fit itssubstantial interest in protecting the public from gun violence. Id. The court rejected Young’s related argument thatHawai‘i’s statute vested in the chief of police unbridleddiscretion as to whether to grant a carry permit, reasoning thatthe “prior restraint doctrine is applicable only in the FirstAmendment context.” Id.

The district court also dismissed Young’s due processclaim on the ground that he had no liberty or property interestin carrying a firearm in public. Id. at 993. The district courtdismissed Young’s complaint, id. at 995–96, and issued afinal judgment.

Young timely appealed, and a divided panel of our courtreversed in part and dismissed in part the district court’sjudgment. Young v. Hawai‘i, 896 F.3d 1044 (9th Cir. 2018). We granted rehearing en banc to determine whether


Hawai‘i’s regulation of open carry violates the SecondAmendment right to keep and bear arms. Young v. Hawai‘i,915 F.3d 681 (9th Cir. 2019).

II. THE STANDARDS FOR OUR REVIEW

A. Standards of Review of Law and Fact

The district court had jurisdiction under 28 U.S.C. § 1331,and we have jurisdiction under 28 U.S.C. § 1291. We reviewde novo a district court’s dismissal under Rule 12(b)(6). Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir.2019). We accept the allegations in Young’s complaint astrue and construe the pleadings in the light most favorable tohim. See Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028,1029–30 (9th Cir. 2009).

B. Scope of Our Review

Having identified the applicable standard of review, wemust now consider the scope of our review. During thesupplemental briefing that we allowed after granting en bancreview, the parties disputed what claims Young actuallyraised before the district court.3 Young argued that his claims

3 In the district court, Young argued that § 134-9 violated the Bill ofAttainder Clause, the Contracts Clause, the Ninth Amendment, and thePrivileges or Immunities Clause. He has abandoned those claims onappeal.

Young’s lengthy and rambling complaint focused on firearms. Nevertheless, in the relief section, Young referred to other arms, “e.g.,stun gun, tasers, mace spray, switch blade etc.” He did not raise these inany briefing before the district court. In his panel briefing, Young, for thefirst time, referred to Hawai‘i’s prohibitions on the possession of electric


before the district court included both a facial challenge andan as-applied challenge to HRS § 134-9. Young pointed toseveral instances where, he claimed, he preserved an as-applied challenge both before the district court and at hispanel-stage briefing. Hawai‘i4 countered that Young raisedonly a facial challenge to the statute below and, to the extentthat Young brought an as-applied challenge, he had forfeitedthat claim.

The difference between the two claims is potentiallyimportant for Young. It is no secret that a facial challenge toa statute is more difficult to prove than an as-appliedchallenge. See United States v. Salerno, 481 U.S. 739, 745(1987). A facial challenge is a claim that the legislature hasviolated the Constitution, while an as-applied challenge is aclaim directed at the execution of the law. See NicholasQuinn Rosenkranz, The Subjects of the Constitution, 62 Stan.L. Rev. 1209, 1235–42 (2010); see also Henry PaulMonaghan, Overbreadth, 1981 Sup. Ct. Rev. 1, 5, 32 n.134(“[I]f a federal statute is found facially defective it ‘is void in

guns, HRS § 134-16; switchblades, id. § 134-52; and butterfly knives, id.§ 134-53. He also argued that Hawai‘i prohibits the carrying of rifles andshotguns publicly, id. § 134-23, § 134-24, in violation of the SecondAmendment. He did not raise these arguments in his supplementalbriefing after we granted en banc review. Because Young did not raisethese arguments properly before the district court, we deem them forfeited.

4 The district court dismissed the State of Hawai‘i, the governor, andthe attorney general as defendants. Young, 911 F. Supp. 2d at 983. Youngdoes not challenge that ruling, but has pressed his claims against theCounty of Hawai‘i, the mayor and the chief of police. The State hasappeared as amicus, not as a party to the appeal. For convenience,because this is a facial challenge to a Hawai‘i statute, we will refer to theState as the party; in fact the remaining defendants are the County ofHawai‘i and its officials charged with following state law.


toto, barring all further actions under it, in this, and everyother case,’” but an as-applied challenge is “wholly factdependent: Do the determinative facts shown by the evidencefall on the protected side of the applicable rule ofconstitutional privilege?”) (footnote and citation omitted). Because a facial challenge is directed to the legislature, theplaintiff must show that “no set of circumstances exists underwhich the [statute] would be valid,” Hotel & Motel Ass’n ofOakland v. City of Oakland, 344 F.3d 959, 971 (9th Cir.2003) (citing Salerno, 481 U.S. at 745) (alteration inoriginal), and our review of the Hawai‘i statute would belimited to the text of the statute itself. Calvary Chapel BibleFellowship v. County of Riverside, 948 F.3d 1172, 1177 (9thCir. 2020). On the other hand, if Young raised and preservedan as-applied challenge to the Hawai‘i law, our review wouldinclude the circumstances surrounding the chief of police’sdecision to deny Young a license. See id.

We need not determine whether Hawai‘i County properlyapplied § 134-9, because Young did not bring an as-appliedchallenge. Our review of the record demonstrates that,although Young peppered his pleadings with the words“application” and “enforcement,” he never pleaded facts tosupport an as-applied challenge. He did not brief such aquestion to the district court. When the district courtdismissed his complaint and treated it as exclusively a facialchallenge, Young, 911 F. Supp. 2d at 991, Young did notrequest reconsideration by the district court to address an as-applied claim.5 To be sure, the district court acknowledged

5 We agree with Judge Nelson that Young was not required to seekreconsideration to preserve his claims for appeal. See R. Nelson Dissentat 205. We merely note that Young did not raise the issue of his allegedly


that Young was denied a license, id. at 979–80, but referredto the fact as relevant to Young’s standing, id. at 987, not tohis causes of action. As we explain in greater detail below,Young did not set out such a claim as an issue before ourcourt in his panel appeal, in which he was represented bycounsel. Those briefs were filed in 2013. He did not raisethe issue in supplemental briefs lodged with the court in2016, and ordered filed in 2018, also submitted by counsel. The panel’s 2018 opinion noted the various arguments Youngraised in his complaint that he abandoned on appeal and“several new arguments on appeal.” Because “Young failedproperly to raise these arguments before the district court,”the panel deemed them forfeited. Young, 896 F.3d at 1050n.3. Like the district court before it, the panel did notrecognize any as-applied challenge in Young’s complaint orbriefings. Young’s as-applied argument appears for the firsttime in his supplemental briefing to the en banc court, whichwas filed in June 2020—more than seven years after hisopening brief was filed.

We will not consider the claim. At best, Young’s putativeas-applied challenge was buried in his complaint and not wellpleaded. At worst, even assuming he pleaded it, Young haslong forfeited the challenge.6 The relaxed pleading standard

mischaracterized as-applied challenge to the district court below or to thepanel on appeal.

6 If we were to take seriously a claim that Young properly pleaded,and preserved, an as-applied challenge, then the district court should nothave issued a final judgment. In that case, Young’s appeal was premature,and we should have dismissed his appeal for lack of jurisdiction. SeeGalaza v. Wolf, 954 F.3d 1267, 1272 (9th Cir. 2020) (dismissing appealfor lack of subject matter jurisdiction where a claim remained before thedistrict court); Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir. 1981) (an


we afford pro se litigants does not apply to counseled filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (Pro se filings“must be held to less stringent standards than formalpleadings drafted by lawyers.”) (citation omitted); Mann v.Boatright, 477 F.3d 1140, 1148 n.4 (10th Cir. 2007) (“Whilewe generally construe pro se pleadings liberally, the samecourtesy need not be extended to licensed attorneys.”)(internal citation omitted). Young’s counsel never raised orargued an as-applied challenge even when he was permitteda supplemental brief. We do “not ordinarily consider matterson appeal that are not specifically and distinctly raised andargued in appellant’s opening brief.” See Hayes v. IdahoCorr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017) (quotingOfficers for Just. v. Civ. Serv. Comm’n of City & Cnty. of SanFrancisco, 979 F.2d 721, 726 (9th Cir. 1992)).

If, as our dissenting colleagues claim, Young raised an as-applied challenge that the district court mischaracterized orignored, see O’Scannlain Dissent at 188; R. Nelson Dissentat 196, the point appears nowhere in his panel-stage briefing. Young’s opening brief mentions the application of HRS§ 134-9 twice in passing but presents no further argument tosupport an as-applied challenge. Instead, Young challengesHRS § 134-9 exclusively on its face, arguing, for example,that HRS § 134-9’s “exceptional case” requirement rendersthe statute unconstitutional, that HRS § 134-9 violates thebroad right to carry firearms in public, and that HRS § 134-9impermissibly vests a chief of police with discretion to deny

order is not appealable unless it disposes of each of the parties’ claims oris appropriate under Fed. R. Civ. P. 54(b)). No one has raised theargument that Young’s appeal was premature or that the district court’sjudgment was anything but a final decision on the merits. We decline tomanufacture jurisdictional issues.


carry permits. At one point, Young even compares hischallenge to HRS § 134-9 to State v. Delgado, 692 P.2d 610(Or. 1984), where “[t]he Plaintiff . . . like Mr. Young, made afacial challenge” to an Oregon switchblade ban. None ofYoung’s counseled arguments in his opening brief suggestthat he had brought an as-applied challenge. Nor didYoung’s panel-stage reply brief argue that the district courtmischaracterized or ignored an as-applied challenge.

We think it is more likely that Young brought no as-applied challenge at all, and thus he may pursue whateverremedies remain to him. In either case, we are under noobligation to consider arguments unless they are “specificallyand distinctly argued.” Miller v. Fairchild Indus., Inc.,797 F.2d 727, 738 (9th Cir. 1986); Hayes, 849 F.3d at 1213. Young did not meet that standard. Even affording Young’sarguments the deference we typically give to pro sepleadings, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), a party’s “bare assertion[s],” without more, will notpreserve an argument for review, especially where “a host ofother issues are presented for review,” Greenwood v. F.A.A.,28 F.3d 971, 977 (9th Cir. 1994) (citation omitted).

We are cognizant of our dissenting colleagues’reservations about our holding that Young did not raise an as-applied challenge and what that might mean for future pro selitigants. R. Nelson Dissent at 197–98; see also O’ScannlainDissent at 188. Today’s opinion, however, does not alter inany way the relaxed pleading standard we regularly affordpro se litigants. We merely hold that in this case, Young hasnot met that standard.

The scope of our review will be limited to Young’s facialchallenge to HRS § 134-9. Young brought a Second


Amendment claim, which he supported in part witharguments based on the First Amendment’s prior restraintdoctrine, and a claim under the Due Process Clause of theFourteenth Amendment. We address his primary SecondAmendment claim in Part III and his other claims in Part IV.

C. Substantive Standards for the Second Amendment

The Second Amendment reads: “A well regulatedMilitia, being necessary to the security of a free State, theright of the people to keep and bear Arms, shall not beinfringed.” U.S. Const. amend. II. Our review of Hawai‘i’sfirearm regulation is guided by the Supreme Court’slandmark decisions in District of Columbia v. Heller,554 U.S. 570 (2008), and McDonald v. City of Chicago,561 U.S. 742, 767 (2010). Both parties contend that Hellersupports its view of the Second Amendment. According toYoung, Heller identified a broad right to possess and carryfirearms in public because the Second Amendment protectsone’s right to self-defense, wherever that need arises. On theState of Hawai‘i’s reading, Heller said no such thing. According to the State, Heller narrowly defined the right tokeep and bear arms to self-defense in the home and,accordingly, prohibitions on firearms that do not interferewith self-defense in the home are valid. We will begin witha discussion of Heller and then review the two-step approachwe developed after Heller.

1. Heller

The Court in Heller considered a District of Columbiastatute prohibiting the possession of loaded firearms insidethe home. The statute required residents to keep theirfirearms unloaded and secured with a trigger lock unless


being used for approved recreational activities or held in aplace of business. Heller, 554 U.S. at 574–75 (citing D.C.Code § 7-2507.02). The requirement that a firearm beunloaded and bound by trigger lock rendered a lawfullypossessed firearm inoperable. Id. at 628. Dick Heller, aresident of the District of Columbia and special police officer,sought to enjoin enforcement of the D.C. statute insofar as itprohibited the lawful possession of firearms within his ownhome. Id. at 576.

Heller’s challenge to the D.C. statute presented the Courtwith its “first in-depth examination of the SecondAmendment.” Id. at 635. In an extensive opinion, the Courtdetermined that the right to keep and bear arms is anindividual right held by the people, and not limited by theprefatory clause—“a well regulated Militia”—only to “theright to possess and carry a firearm in connection with militiaservice.” Id. at 596, 577, 599. The Court also concluded thatthe “right to keep and bear Arms” was not a new right createdby the Second Amendment but “codified a right ‘inheritedfrom our English ancestors.’” Id. at 599 (quoting Robertsonv. Baldwin, 165 U.S. 275, 281 (1897)). The right to keep andbear arms was thus recognized, but not granted, in theConstitution, “for it had always existed.” Id. at 619 (citingJohn Ordronaux, Constitutional Legislation in the UnitedStates 241–42 (1891)). Since the right to keep and bear armsis an ancient one, the Court evaluated the history of theSecond Amendment starting with English history, andcontinuing with American legal materials through theratification of the Fourteenth Amendment. Id. at 581–92,606–19.

Although it was clear to the Court that the history of theSecond Amendment supported an individual right to bear


arms that did not depend on militia service, the Court did notundertake to explain how far the protection to bear armsextended. That is, Heller was not an “exhaustive historicalanalysis . . . of the full scope of the Second Amendment.” Id.at 626. The Court acknowledged that the right to keep andbear arms, “[l]ike most rights, . . . [is] not unlimited,” and thatit is not a right to “carry any weapon whatsoever in anymanner whatsoever and for whatever purpose.” Id. Hellerrecognized that the Second Amendment necessarily acceptedcertain “longstanding prohibitions” on the possession offirearms; such restrictions are “presumptively lawful.” Id.at 626–27, 627 n.26. Although the Court declined to createan exhaustive list of such longstanding prohibitions, itidentified three classes of lawful prohibitions: bans onpossession by felons and the mentally ill; bans on possessionin sensitive places; and regulations on the commercial sale offirearms. Id. at 626–27. The Court also determined that theSecond Amendment only protected weapons in “commonuse,” id. at 627, including the handgun, which Heller calledthe “quintessential self-defense weapon.” Id. at 629.

Heller held that an outright ban of firearms in the homeviolates the Second Amendment. Id. at 628–29 (“Thehandgun ban amounts to a prohibition of an entire class of‘arms’ that is overwhelmingly chosen by American societyfor that lawful purpose. . . . Under any of the standards ofscrutiny that we have applied to enumerated constitutionalrights, banning from the home ‘the most preferred firearm inthe nation to keep and use for protection of one’s home andfamily,’ would fail constitutional muster.” (citation andfootnote omitted)). The extent to which the SecondAmendment protects the right to keep and bear arms outsidethe home is less clear. To that issue, Heller posed morequestions than it answered. By tying the Second Amendment


to the need to defend one’s self, Heller implied that someright to bear arms may exist outside the home. See id. at 599(the right to self-defense is a “central component of the rightitself”). But the Court’s caveats left open questionsconcerning state restraints on persons, weapons, and otherrestrictions for possessing arms outside the home. Id.at 626–27.

Two years after Heller, the Supreme Court reaffirmed that“[s]elf-defense is a basic right [and] . . . ‘the centralcomponent’ of the Second Amendment right,” whose exercisewas “‘most acute’ in the home.” McDonald, 561 U.S. at 767(quoting Heller, 554 U.S. at 599, 628). McDonald answereda different question than Heller, namely, whether the SecondAmendment applies to the states. The Court held that theSecond Amendment was incorporated through the DueProcess Clause of the Fourteenth Amendment and, thus,applies to the states. Id. In reaching that conclusion, theCourt once again looked to history, but this time to the post-ratification history of the Second Amendment and the placeof the Second Amendment in the debates over the FourteenthAmendment. Id. at 767–80.

2. Our Post-Heller Framework

Following Heller and McDonald, we have created a two-step framework to review Second Amendment challenges. See Silvester v. Harris, 843 F.3d 816, 820–21 (9th Cir. 2016);Peruta, 824 F.3d at 939; Jackson v. City and County of SanFrancisco, 746 F.3d 953, 960–61 (9th Cir. 2014); UnitedStates v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013). Ourtwo-step test is similar to tests adopted by other circuits. Chovan, 735 F.3d at 1134–37; Drake, 724 F.3d at 429;Woollard v. Gallagher, 712 F.3d 865, 874–75 (4th Cir. 2013);


Nat’l Rifle Ass’n of Am., Inc. v. Bureau of ATFE (NRA),700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno,679 F.3d 510, 518 (6th Cir. 2012); Heller v. District ofColumbia (Heller II), 670 F.3d 1244, 1252 (D.C. Cir. 2011);Ezell v. City of Chicago, 651 F.3d 684, 701–04 (7th Cir.2011); United States v. Reese, 627 F.3d 792, 800–01 (10thCir. 2010). First, we ask if the challenged law affects conductthat is protected by the Second Amendment. Silvester,843 F.3d at 821. We base that determination on the“‘historical understanding of the scope of the right.’” Id.(quoting Heller, 554 U.S. at 625). We are to inquire

whether there is persuasive historical evidenceshowing that the regulation does not impingeon the Second Amendment right as it washistorically understood. Laws restrictingconduct that can be traced to the founding eraand are historically understood to fall outsideof the Second Amendment’s scope may beupheld without further analysis.

Id. (internal citations omitted); see also Jackson, 746 F.3dat 960. Accordingly, a regulation “does not burden conductprotected by the Second Amendment if the record contain[s]evidence that [the subjects of the regulations] have been thesubject of longstanding, accepted regulation.” Fyock v.Sunnyvale, 779 F.3d 991, 997 (9th Cir. 2015). We arelooking for “historical prevalence.” Id. Similarly, we mayuphold a law without further analysis if it falls within the“presumptively lawful regulatory measures” that Helleridentified. Silvester, 843 F.3d at 821; see Heller, 554 U.S.at 626–27, 627 n.26.


If the challenged restriction burdens conduct protected bythe Second Amendment—either because “the regulation isneither outside the historical scope of the SecondAmendment, nor presumptively lawful”—we move to thesecond step of the analysis and determine the appropriatelevel of scrutiny. Silvester, 843 F.3d at 821. We haveunderstood Heller to require one of three levels of scrutiny: If a regulation “amounts to a destruction of the SecondAmendment right,” it is unconstitutional under any level ofscrutiny; a law that “implicates the core of the SecondAmendment right and severely burdens that right” receivesstrict scrutiny; and in other cases in which SecondAmendment rights are affected in some lesser way, we applyintermediate scrutiny. Id.

III. PUBLIC CARRY OF FIREARMS AND THE SCOPEOF THE SECOND AMENDMENT

Consistent with this scheme, our first task is to determinewhether the right to carry a firearm openly in public isprotected by the Second Amendment. We have been down asimilar road before. In Peruta, we addressed the question ofwhether the Second Amendment protected the right ofindividuals to carry concealed arms. After canvassing thehistorical record, we concluded that “the Second Amendmentdoes not protect the right of a member of the general publicto carry concealed firearms in public.” Peruta, 824 F.3d at939. The question we address here is a variation on thattheme: whether the Second Amendment guaranteesindividuals the right to carry arms openly in public. It is aquestion we specifically reserved in Peruta. Id. (“There mayor may not be a Second Amendment right for a member ofthe general public to carry a firearm openly in public. TheSupreme Court has not answered that question, and we do not


answer it here.”). And it is a question that has divided thecircuits. Compare Gould v. Morgan, 907 F.3d 659 (1st Cir.2018) (upholding Massachusetts licensing scheme restrictingopen carry); Kachalsky v. County of Westchester, 701 F.3d 81(2d Cir. 2012) (same; New York licensing scheme); Drake,724 F.3d 426 (same; New Jersey licensing scheme);Woollard, 712 F.3d 865 (same; Maryland licensing scheme),with Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)(holding Illinois licensing scheme for open carryunconstitutional); Wrenn v. District of Columbia, 864 F.3d650 (D.C. Cir. 2017) (same; District of Columbia licensingscheme).

Our sister circuits have, in large part, avoided extensivehistorical analysis. The Second Circuit skimmed a handful ofAmerican statutes and cases and decided against lookingsolely “to this highly ambiguous history and tradition.” Kachalsky, 701 F.3d at 91. The Third Circuit likewise was“not inclined to . . . engag[e] in a round of full-blownhistorical analysis.” Drake, 724 F.3d at 431; see Gould,907 F.3d at 670 (concluding, without citation to historicalsources, that “the national historical inquiry does not dictatean answer”); Woollard, 712 F.3d at 876. Each of thesecircuits instead assumed that there was some SecondAmendment right to carry firearms in public and appliedintermediate scrutiny to the regulations at issue. Gould,907 F.3d at 670–72; Drake, 724 F.3d at 435; Woollard,712 F.3d at 876; Kachalsky, 701 F.3d at 93. The two circuitsthat struck down state or D.C. licensing rules also largelyavoided the historical record. The D.C. Circuit thought thatHeller resolved the question so it could “sidestep thehistorical debate.” Wrenn, 864 F.3d at 660. With littlereview of historical materials, the Seventh Circuit announcedthat “one doesn’t have to be a historian to realize that a right


to keep and bear arms for personal self-defense in theeighteenth century could not rationally have been limited tothe home.” Moore, 702 F.3d at 936. Both courts concludedthat Heller protected a broad right to self-defense thatextended beyond the home. Wrenn, 864 F.3d at 659; Moore,702 F.3d at 937. To be clear, most of these courts cited somehistorical materials, but no court undertook a systematicreview of the historical right to carry weapons in public. See,e.g., Wrenn, 864 F.3d at 659–61; Drake, 724 F.3d at 432–34;Moore, 702 F.3d at 936–37; Kachalsky, 701 F.3d at 90–91,94–96.

We do not think we can avoid the historical record. Heller relied heavily on history, and we do not think that itexhausted all subsequent need to confront our history inresolving challenges to other firearm regulations. See Peruta,824 F.3d at 929–39 (reviewing the historical materials relatedto concealed-carry restrictions). Indeed, the Court wasexplicit on this point:

Justice Breyer chides us for leaving so manyapplications of the right to keep and bear armsin doubt, and for not providing extensivehistorical justification for those regulations ofthe right that we describe as permissible. Butsince this case represents this Court’s first in-depth examination of the Second Amendment,one should not expect it to clarify the entirefield, any more than Reynolds v. UnitedStates, 98 U.S. 145 (1879), our first in-depthFree Exercise Clause case, left that area in astate of utter certainty. And there will be timeenough to expound upon the historicaljustifications for the exceptions we have


mentioned if and when those exceptions comebefore us.

Heller, 554 U.S. at 635 (internal citation omitted) (emphasisadded).

We begin with a review of the historical record, startingwith the English tradition, and then review the Colonial eraand the post-Second Amendment era. Our focus on theAmerican sources will be on state laws and cases. As theCourt explained in Heller, “[f]or most of our history, the Billof Rights was not thought applicable to the States, and theFederal Government did not significantly regulate thepossession of firearms by law-abiding citizens.” 554 U.S. at625. As we review these records, we are well aware that weare jurists and not historians. That creates the risk that we areengaged in Professor Kelly’s “law office history.”7 That isnot only a risk we must assume; after Heller, it is our duty toconfront such history. In an effort to get the history right, wehave also honored the history of common law advocacy: Wehave looked to the parties to shape the arguments and call tothe court’s attention the appropriate precedents. We havealso relied on the parties and amici to direct our focus to theprincipal historical sources and any important secondarysources they would like us to consider. We have tried to beas complete as possible in recounting this history, but this isa legal opinion, not a dissertation, so we are likely to fallshort in some way.

7 Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965Sup. Ct. Rev. 119, 122 n.13 (“By ‘law-office history,’ I mean the selectionof data favorable to the position being advanced without regard to orconcern for contradictory data or proper evaluation of the relevance of thedata proffered.”).


As we might expect in this area, fraught with strongopinions and emotions, history is complicated, and the recordis far from uniform. Nevertheless, we can discern theprincipal themes of the historical record. Our review of thathistory demonstrates that restrictions on carrying arms openlyhave long been a part of our legal tradition.

A. The English Right to Bear Arms in Public

We start, as did the Court in Heller, with the Englishconcept of the right to bear arms. Our purpose in exploringthe English tradition is not to import its law wholesale to ourmodern jurisprudence. Indeed, the evolution of the right tokeep and bear arms is a valuable tool for discerning theSecond Amendment’s meaning. But as Heller made clear,the Second Amendment did not create a new right; it codifieda pre-existing one that we “inherited from our Englishancestors.” 554 U.S. at 599 (quoting Robertson v. Baldwin,165 U.S. 275, 281 (1897)).

1. The Royal Decrees

As we recognized in Peruta, English law restricted publicfirearm possession as early as the thirteenth century. 824 F.3d at 929. King Edward I and his successor, KingEdward II, issued a series of orders to local sheriffs thatprohibited “going armed” without the king’s permission. In1299, Edward I ordered the sheriffs of Salop and Stafford toprohibit any one “from tourneying, tilting . . . or jousting, ormaking assemblies, or otherwise going armed within therealm without the king’s special licen[s]e.” 4 Calendar OfThe Close Rolls, Edward I, 1296–1302, at 318 (Sept. 15,1299, Canterbury) (H.C. Maxwell-Lyte ed., 1906) (emphasisadded). The punishment for violating the order included


“forfeiture of life and limb, lands,” and any other holdings inthe king’s realm. Id. Although the 1299 order was onlyaddressed to the sheriffs of Salop and Stafford, the kingintended the order to apply to “to all the sheriffs of England.” Id.

Three years later, Edward I similarly instructed the sheriffof York to prohibit “any knight, esquire or any other personfrom . . . going armed without the king’s special licen[s]e.” Id. at 588 (July 16, 1302, Westminster). Any person “foundthus going with arms after the proclamation” should have his“horses and armour” arrested. Id. In 1304, Edward I orderedthe sheriffs of Leicester and York to issue a proclamationprohibiting any person from “going armed in any waywithout the king’s licen[s]e.” 5 Calendar Of The Close Rolls,Edward I, 1302–1307, at 210 (June 10, 1304, Stirling) (H.C.Maxwell-Lyte ed., 1908).

Edward II issued several similar orders. In the monthsleading up to Edward II’s coronation in 1308, he issued anorder prohibiting any “knight, esquire, or other” from going“armed at Croydon or elsewhere before the king’scoronation.” 1 Calendar Of The Close Rolls, Edward II,1307–1313, at 52 (Feb. 9, 1308, Dover) (H.C. Maxwell-Lyteed., 1892). Two years later Edward II issued an order to thesheriff of York, and to all the sheriffs of England, prohibitingany “earl, baron, knight, or other” from “go[ing] armed,under pain of forfeiture.” Id. at 257 (Apr. 9, 1310, Windsor). Two years after that, the king ordered the sheriffs in Warwickand Leicester to proclaim that “no one shall, under pain offorfeiture, . . . go armed . . . without the king’s speciallicen[s]e.” Id. at 553 (Oct. 12, 1312, Windsor). He alsoordered “[t]he like to all the sheriffs of England.” Id.


The frequency and consistency of the royal orders andtheir subsequent local proclamations demonstrated aregulated approach to going armed in public. There wassome ability to do so, but it was subject to first obtaining the“king’s special license.” 4 Calendar Of The Close Rolls,Edward I, 1296–1302, at 588 (July 16, 1302, Westminster)(H.C. Maxwell-Lyte ed., 1906). Absent the king’spermission, any person going armed in public was subject topunishment.

In 1326 Edward II again ordered the sheriff of Huntingtonto arrest anyone going armed without the king’s license. Theking commanded:

Whereas the king lately caused proclamationto be made throughout his realm prohibitingany one going armed without his licence,except the keepers of his peace, sheriffs, andother ministers, willing that any one doing thecontrary should be taken by the sheriff orbailiffs or the keepers of his peace anddelivered to the nearest gaols, to remaintherein until the king ordered his willconcerning them.

4 Calendar Of The Close Rolls, Edward II, 1323–1327, at 560(April 28, 1326, Kenilworth) (H.C. Maxwell-Lyte ed., 1898). The 1326 edict reinforced that no person could carry armspublicly unless he fell within a certain group of peace keepers(“sheriffs, and other ministers”) or unless he obtained theking’s permission. Id.

Other orders from 1326 enforced a ban on publiclycarrying arms unless engaged in law enforcement or with


permission. In a November 1326 order, Edward II prohibitedany person in London from “go[ing] armed by night or day,save officers and other good men of the City assigned by theMayor and Aldermen in their wards to keep watch andpreserve the peace . . . .” 1 Calendar of Plea & MemorandaRolls of the City of London, 1323–1364, at 15 (November1326) (A.H. Thomas ed., 1926). The purpose of therestriction on arms was to maintain the king’s peace andallow “all manner of men . . . [to] come and go in safety.” Id. Three months later, public arms carrying was more forcefullybanned in London. A proclamation from January of 1327stated that “[t]he bearing of arms is forbidden, except to theofficers of the City assigned by the Mayor and Aldermen tokeep watch in the Wards, and to the Hainaulters of the Queen,who are accustomed to go armed in the manner of theircountry.” Id. (emphasis added). Although the king regularlygranted the sheriffs authority to disarm the people while inpublic, it is unclear from these royal orders whether thatauthority was absolute or if it was tied to times of potentialupheaval and possible affray. See Patrick J. Charles, TheFaces of the Second Amendment Outside the Home: HistoryVersus Ahistorical Standards of Review, 60 Clev. St. L. Rev.1, 12 (2012).

2. The Statute of Northampton

a. The statute. Any doubt as to the scope ofgovernment’s authority to disarm the people in public wasdispelled with Parliament’s 1328 enactment of the Statute ofNorthampton, which effectively codified the firearmsrestrictions that preceded it. The statute provided:

That no Man great nor small, of whatCondition soever he be, except the King’s


Servants in his presence, and his Ministers inexecuting of the King’s Precepts, or of theirOffice, and such as be in their Companyassisting them, and also [upon a Cry made forArms to keep the Peace, and the same in suchplaces where such Acts happen,] be so hardyto come before the King’s Justices, or other ofthe King’s Ministers doing their office, withforce and arms, nor bring no force in affray ofthe peace, nor to go nor ride armed by nightnor by day, in Fairs, Markets, nor in thepresence of the Justices or other Ministers,nor in no part elsewhere, upon pain to forfeittheir Armour to the King, and their Bodies toPrison at the King’s pleasure.

2 Edw. 3, 258, ch. 3 (1328) (emphasis added). The Statute ofNorthampton prohibited all people (“great [or] small”) fromgoing armed in places people were likely to gather (“Fairs,Markets, [and] in the presence of the Justices or otherMinisters”). Id. The prohibition was not limited to thoseenumerated places, but extended to other public places (“[any] part elsewhere”). Id. Like the royal orders precedingthe statute, Parliament excepted certain people (the “king’sServants”) from the ban on being armed in public while onthe king’s business (“in [his] presence” and “executing of theKing’s Precepts”). Id.

To the majority of fourteenth-century Englishmen, theStatute of Northampton was generally understood to be “acomplete prohibition on carrying weapons in public, at leastin populated areas.” Mark Anthony Frassetto, To the Terrorof the People: Public Disorder Crimes and the OriginalPublic Understanding of the Second Amendment, 43 S. Ill. U.


L.J. 61, 67 (2018). But its effects were more wide rangingthan a mere public-arms prohibition. The Statute ofNorthampton “was to have long-term importance for themaintenance of law and order” in the realm, by helping keepthe king’s peace. See Anthony Verduyn, The Politics of Lawand Order During the Early Years of Edward III, 108 Eng.Hist. Rev. 842, 850 (1993).8 The statute applied to anyone

8 We have referred generally to the “king’s peace” as a shorthand forthe king’s responsibility to maintain the peace in his domain. But thenotion of the king’s peace evolved in England over time. Originally theking’s peace covered only those within the king’s castle or household. SeeDavid Feldman, The King’s Peace, the Royal Prerogative and PublicOrder: The Roots and Early Development of Binding Over Powers,47 Cambridge L.J. 101, 105 (1988). Just as the king had his “peace,” sodid others: “the peace of the king was one thing, [but] the peace of thelord of the manor, the peace of the churches, the peace of the sheriff, [and]the peace of the homestead, were all quite other things.” A.H.F. Lefroy,Anglo-Saxon Period of English Law, 26 Yale L.J. 388, 388 (1917). Eachhead of household had a “duty to protect his household, and an attack onany member of the household wronged him.” Feldman, 47 CambridgeL.J. at 105.

The expansion of the king’s peace began in the eleventh century. Atfirst, the king extended his peace to the three-mile radius surrounding hiscourt. Id. That expansion continued through the fourteenth century andwas especially strong in areas of special importance to the king. Id.at 106. The king could also extend his peace to any individuals who wereon his errand or otherwise needed the king’s blessing, and “[a]ny assaulton them in their travels would be regarded as a direct affront to the king’sown personal peace, as if it had happened in his residence.” Id.

Over time, the king’s peace expanded so significantly that it becamethe general peace. This “movement of absorption” has “long sincepractically concluded in England.” Lefroy, 26 Yale L.J. at 389. As theking’s peace extended to a larger portion of the kingdom, it increased boththe king’s responsibility to protect his subjects and his jurisdiction topunish wrongdoers. Id. (“The violation of the king’s peace was theoriginal offence from which the jurisdiction of the sovereign in criminal


carrying arms, without specifying whether the arms werecarried openly or secretly. In 1350, Parliament specificallybanned the carrying of concealed arms. See 25 Edw. 3, 320,st. 5, c. 2, § 13 (1350) (“[I]f percase any Man of this Realmride armed [covertly] or secretly with Men of Arms againstany other . . . it shall be judged . . . Felony or Trespass,according to the Laws of the Land.” (alteration in original)).

The Statute of Northampton was amended in 1396. Theamended statute retained all the prohibitions on publiccarriage of arms found in the original version and alsoexpanded the types of armor that could not be carried inpublic. As amended, the statute provided “[t]hat no Manshall ride armed within the Realm, against the Form of theStatute of Northampton” and that “no Lord, Knight nor other,little nor great, shall go nor ride by Night nor by Day armed,nor bear [Sallet] nor Skull of Iron, nor [of] other Armour,upon the pain aforesaid; save and except the King’s Officersand Ministers in doing their Office.” 20 Ric. 2, 92–93, ch. 1(1396) (internal footnotes omitted).

matters arose.”). “Slowly the idea of a ‘general peace’ embracing the‘peace’ of the various customary jurisdictions was evolved.” Id.; seeFeldman, 47 Cambridge L.J. at 107 (“It was the Norman kings who usedthe idea of the king’s peace as a means of extending their jurisdiction atthe expense of local courts.”).

When the king’s justices of the peace tried criminal matters, thosematters were tried as an offense against the king. “In modern pleading [inthe United States], the phrase ‘against the peace of the commonwealth’ or‘of the people’ is used.” Contra pacem, Black’s Law Dictionary (rev. 4thed., 1968). Hence, our cases are charged as an offense against the “UnitedStates” or the “State.”


b. Enforcement. We have record of few indictmentsunder the Statute of Northampton, but there is evidence thatEdward III and his successors regularly instructed sheriffs toenforce the statute.9 For instance, in 1328, Edward IIIordered the sheriff of Southampton to “cause the statute [ofNorthampton] prohibiting men coming armed before justicesor other ministers of the king, or going armed, etc., to beobserved in all its articles throughout the whole of hisbailiwick.” 1 Calendar Of The Close Rolls, Edward III,1327–1330, at 420 (November 10, 1328 Walingford) (H.C.Maxwell-Lyte ed., 1896). The sheriff was further ordered to“take and imprison all found contravening” the statute. Id. The king similarly ordered sheriffs to enforce the Statute ofNorthampton if he learned that the people were not compliantwith its restrictions on arms. For example, when the kingdiscovered that the people of Surrey and Sussex were “goingabout armed in the sheriff’s bailiwick, contrary to the form ofthe statute made in the late parliament of Northampton,” heinstructed the sheriffs to imprison “all those whom he shallfind going armed, with their horses and armor.” 2 CalendarOf The Close Rolls, Edward III, 1330–1333, at 131 (April 3,

9 There is some dispute among historians over the extent to which theStatute of Northampton was enforced as a broad ban on public carry ofarms. For example, historian Joyce Lee Malcolm argues that the statute,and other firearms prohibitions, were rarely enforced. She claims that“[a]lthough men were occasionally indicted for carrying arms to terrorizetheir neighbours, the strict prohibition against going armed ‘by Night norby Day . . . in Fairs, Markets . . . nor in no part elsewhere’ had never beenenforced.” Joyce Lee Malcolm, To Keep and Bear Arms 104 (1994). Other historians argue that the lack of indictments under the statute is notprobative of its overall enforcement in fourteenth-century England. See,e.g., Charles, 60 Clev. St. L. Rev. at 13–16 (identifying several royaledicts that instructed sheriffs to enforce the Statute of Northampton andnoting that Richard II amended the statute in 1396 but retained theprohibition on going armed in public).


1330, Woodstock) (H.C. Maxwell-Lyte ed., 1898). Fouryears later, the king issued another order consistent with theStatute of Northampton, which reinforced the statute’sexceptions for those on the king’s errand. 3 Calendar Of TheClose Rolls, Edward III, 1333–1337, at 294 (January 30,1334, Woodstock) (H.C. Maxwell-Lyte ed., 1926) (“[I]n thestatute of Northampton . . . it was ordained that no one excepta minister of the king should use armed force or go armed infairs, markets, etc. . . . ).

The Statute of Northampton’s restrictions on carrying alsopermeated public life. For example, in preparation for theFeast of St. Thomas in 1343, Edward III ordered Londonhostelries to warn their guests “against going armed in theCity.” 1 Calendar of Plea & Memoranda Rolls of the City ofLondon, 1323–1364, at 156 (December 19, 1343) (A.H.Thomas ed., 1898). The guests’ violation of the armsprohibition would have subjected them to arrest and forfeitureof their arms. Id.

The Statute of Northampton continued in force afterEdward III was succeeded by King Richard II in 1377. Likehis predecessor, Richard II issued orders to county sheriffs toenforce the Statute of Northampton and keep the king’speace. Months after Richard II’s coronation, he reminded themayor and bailiffs of Newcastle upon Tyne that the Statute ofNorthampton provided the vehicle to keep the peace byprohibiting the public carry of arms. The king’s order statedthat the “statute published at Norhampton [sic] in 2 EdwardIII . . . contained that . . . no man of whatsoever estate orcondition shall go with armed force, lead any force to thedisturbance of the peace, ride or go armed by day or night infairs, markets or in presence of justices or other the king’sministers” without risking arrest and forfeiture of their arms.


1 Calendar Of The Close Rolls, Richard II, 1377–1381, at 34(December 1, 1377, Westminster) (H.C. Maxwell-Lyte ed.,1914) (emphasis added).

c. Cases. We have been pointed to two cases that mayshed light on the restrictions in the Statute of Northampton. The first is Chune v. Piott (1615), 80 Eng. Rep. 1161 (K.B.),in which the Statute of Northampton is not mentioned. Chune was a false-arrest case that challenged the sheriff’sauthority to arrest people who had not actually breached thepeace. The King’s Bench concluded that sheriffs hadauthority “without all question” to arrest anyone carrying aweapon “in the high-way, in terrorem populi Regis.” Id. Thephrase in terrorem populi Regis—“to the terror of the king’speople”—might suggest one of two things: First, that theremust be some proof of the carrier’s intent to terrorize thepeople or, second, that there must be some proof of the effect(whether intended or not) on the people. But the courtultimately concluded that neither was an element of the crimeof unlawful carrying. The sheriff could arrest a personcarrying arms in public “notwithstanding he doth not breakthe peace.” Id.

The second is Sir John Knight’s Case, which is importantbecause it was one of the few prosecutions under the Statuteof Northampton for which we have some record, even if thereare some disputes about what that record signifies. Sir JohnKnight was accused of “going armed, to the terror of thepublic” and charged under the Statute of Northampton andthe common law crime of “affray.” Sir John Knight’s Case(1686), 87 Eng. Rep. 75–76 (K.B.).10 According to one

10 An “affray” was a “noisy fight . . . in some public place, to theterror of onlookers.” Affray, Black’s Law Dictionary (10th ed. 2014).


report, the crown alleged that Knight went armed in public,and more specifically, that he “went into the church of St.Michael . . . in the time of divine service, with a gun, toterrify the King’s subjects.” Id. at 76. A second report statesthat he went into a church “with pistols,” Rex v. Sir JohnKnight (1686), 90 Eng. Rep. 330, 330 (K.B.), while anunofficial report states that he was “goeing with a blunderbusin the streets, to the terrifyeing his majesties subjects,”1 Narcissus Luttrell, A Brief Historical Relation of StateAffairs, September 1678 to April 1714, at 380 (Oxford Univ.Press 1857).

Whatever Knight was doing, the sources agree thatKnight was acquitted, but they disagree on what grounds. According to one report, the Statute of Northampton was“almost gone in [desuetude],” but Knight could still bepunished if he carried arms with mal-intent to terrify thepeople. Presumably, his acquittal was due to this lack of suchintent. Knight’s Case, 90 Eng. Rep. at 330. Similarly, theunofficial report claimed that Knight was “tried by a jury ofhis own citty [sic], that knew him well, [and] he wasacquitted, not thinking he did it with any ill design, to thegreat disappointment of some persons.” Luttrell, A BriefHistorical Relation at 389. According to another reporter, theChief Justice of the King’s Bench opined that the meaning ofthe Statute of Northampton was to punish those who goarmed. Knight’s Case, 87 Eng. Rep. at 76. The Chief Justiceexplained that publicly carrying arms was not just an act thatcould terrify the people but was also an affront to the king’speace because the act of carrying arms in public suggestedthat “the King [was] not able or willing to protect hissubjects,” id.—indicating perhaps that Knight was acquittedbecause he had not intended criticism of the king’s authorityor ability to keep the peace. See Frassetto, 43 S. Ill. U. L.J.


at 70 (“Notably, Knight defended himself on the grounds ofhis ‘active loyalty’ to the crown rather than by denying thathe had created a public terror.”). We cannot resolve thisdispute in the original sources, much less in the academicliterature.11 What is curious is that according to tworeporters, Knight was “acquitted, yet bound to goodbehaviour.” Knight’s Case, 90 Eng. Rep. at 331; see Knight’sCase, 87 Eng. Rep. at 76 n.(a) (“But on the motion of theAttorney General he was bound to his good behaviour.”). Itthus seems that Knight was required to pay a surety for goodbehavior—making Knight’s “acquittal” more of a conditionalpardon.12

11 Scholars continue to disagree about the reasons underlying Knight’sacquittal. There seem to be two current schools of thought. Either theStatute of Northampton required the prosecution to show that Knightintended to terrorize others by publicly carrying arms, or Knight wasacquitted by virtue of his aristocratic status. Compare David B. Kopel,The First Century of Right to Arms Litigation, 14 Geo. J. L. & Pub. Pol’y127, 135–37 (2016) (“[O]nly malicious, terrifying carry was illegal” underthe statute.), with Saul Cornell, The Right to Keep and Carry Arms inAnglo-American Law: Preserving Liberty and Keeping the Peace, 80 Law& Contemp. Probs. 11, 26–27 (2017) (positing that aristocrats were “theone group expressly exempted from the Statute of Northampton”). Relying on the former explanation, some scholars have argued that SirJohn Knight’s Case shifted English jurisprudence towards a morepermissive open-carry regime. See Eugene Volokh, The First and SecondAmendments, 109 Colum. L. Rev. Sidebar 97, 101–02 (2009); Kopel,14 Geo. J. L. & Pub. Pol’y at 137–38. Other scholars are unsurprised byKnight’s acquittal as he was of the class of Englishman that the Statute ofNorthampton would not have reached anyway. See Frassetto, 43 S. Ill. U.L.J. at 64 & n.15.

12 The development of a system of “surety” was closely related to thedevelopment of the “king’s peace.” There were two types of sureties: sureties for good behavior and sureties of the peace. Feldman,47 Cambridge L.J. at 102–03. They had different goals. The surety ofgood behavior was “a form of conditional pardon given by the king to


d. Treatises. English treatises also recognized theprohibition on publicly carrying arms in England. In one ofEngland’s first treatises, John Carpenter observed that publiccarriage of arms was dependent upon first obtaining theking’s license. In the aptly titled section “That no one goarmed,” Carpenter stated:

that no one, of whatever condition he be, goarmed in the said city or in the suburbs, orcarry arms, by day or by night, except thevadlets of the great lords of the land, carryingthe swords of their masters in their presence,and the serjeants-at-arms of his lordship theKing, of my lady the Queen, the Prince, andthe other children of his lordship the King,

malefactors,” similar to posting bail as a condition of probation. Id.at 103. So, for a surety of good behavior, there had to be some sort ofcharge of wrongdoing that preceded the surety. The surety for goodbehavior essentially allowed those accused of crimes—who could affordit—to avoid punishment while allowing the crown to “rehabilitate andmake use of military men who were urgently needed . . . .” Id. at 121.

The surety of the peace was administered by the Keepers (Justices)of the Peace and was employed to keep the king’s peace in areas where acentralized police force did not exist. The surety of the peace followed anaccusation by someone that an individual would likely violate the law inthe future. It was either a money payment or pledge by others “in supportof his future good conduct.” Id. at 104. See Kopel, 14 Geo. J. L. & Pub.Pol’y at 131 n.14 (citing Y.B. Trin. 14 Hen. 7 (1499), reported in Y.B.21 Henry 7, fol. 39, Mich., pl. 50 (1506) (“Anonymous.” No case name)(“[A] man’s house is his castle and defense,” but “if one were threatenedthat if he should come to such a market . . . he should there be beaten, inthat case he could not assemble persons to help him go there in personalsafety, for he need not go there, and he may have a remedy by surety ofthe peace.”)). The money payment (or the pledge by others) was releasedafter a period of time in which the person did not violate the law.


and the officers of the City, and such personsas shall come in their company in aid of them,at their command, for saving and maintainingthe said peace; under the penalty aforesaid,and the loss of their arms and armour.

John Carpenter, Liber Albus: The White Book of the City ofLondon 335 (Henry Thomas Riley ed., 1862) (footnoteomitted) (emphasis added).

Other English treatises weigh in on whether prosecutionunder the Statute of Northampton required proof that carryingarms caused terror. William Hawkins, a seventeenth centurybarrister and jurist, stated that a person may commit an“affray where there is no actual violence; as where a manarms himself with dangerous and unusual weapons, in sucha manner as will naturally cause a terror to the people.” 1 William Hawkins, A Treatise of the Pleas of the Crown 488(John Curwood ed., 1824). On the other hand, Hawkins alsostated that wearing arms—perhaps those that were not“dangerous and unusual”—alone was not enough to warrantprosecution. “[N]o wearing of arms is within the meaning ofthis statute [of Northampton], unless it be accompanied withsuch circumstances as are apt to terrify the people . . . .” Id.at 489. Hawkins continued that “persons of quality” did notrisk violating the statute by wearing “common weapons . . .for their ornament or defence.” Id. Some have interpretedHawkins’s reference to “persons of quality” as an indicationthat certain classes of people could carry arms consistent withtheir status because that would be neither uncommon norovertly terrifying to the people. See Frassetto, 43 S. Ill. U.L.J. at 67–69 (describing Hawkins’s statement that publiccarry was not threatening when it was done by the wealthywhose carrying of arms would not be out of the ordinary).


Hawkins, however, also recognized that the lawful publiccarry of arms required some particular need. The desire forproactive self-defense was not a good enough reason to goarmed openly. “[A] man cannot excuse the wearing [of] sucharmour in public, by alleging that such a one threatened him,and [that] he wears it for the safety of his person from hisassault.” 1 Hawkins, A Treatise of the Pleas of the Crown at489.

Joseph Keble, another seventeenth-century Englishbarrister, recognized that public terror resulted fromwitnessing arms unexpectedly. While examining the crimeof affray in a 1683 treatise, Keble noted “if a man shall shewhimself furnished with Armour or Weapon which is notusually worn, it will strike a fear upon others that be notarmed.” Joseph Keble, An Assistance to the Justices of thePeace, for the Easier Performance of their Duty 147 (1689). Keble’s reference to weapons “not usually worn” could refereither to “unusual weapons” or to common weapons wornwhen one would not expect it.

Sir William Blackstone and Lord Edward Coke stronglysuggested that carrying arms openly was a status offense andthat the law did not require proof of intent or effect. Blackstone clarified the principle, stating that the mere act ofgoing armed in and of itself terrified the people. He statedthat “[t]he offence of riding or going armed with dangerousor unusual weapons, is a crime against the public peace, byterrifying the good people of the land, and is particularlyprohibited by the Statute of Northampton.” 4 WilliamBlackstone, Commentaries *148–49 (1769). According toBlackstone, going armed with dangerous or unusual weaponswas all that was required to terrify the people of the land, andthus the law required neither proof of intent to terrify nor


proof that actual terror resulted from the carrying of arms.13 Lord Coke observed that the Statute of Northampton meantthat no one could “goe nor ride armed by night nor by day . . . in any place what[s]oever.” Edward Coke, The Third Part ofthe Institutes of the Laws of England 160 (E. and R. Brooke ed., 1797). Coke continued that “he cannot assemble force,though he be extremely threatened, to go with him to church,or market, or any other place, but that is prohibited by this[a]ct.” Id. at 161 (emphasis added). He also noted that theStatute did not apply to a man who must “assemble force todefend his house.” Id. at 161.

3. The English Bill of Rights

Following the Glorious Revolution, the English right tobear arms changed with the enactment of the English Bill ofRights in 1689.14 The English Bill of Rights created, for thefirst time, a right for certain people to possess arms, but itwas a conditional right. It provided “[t]hat the [s]ubjectswhich are Protestants may have [a]rms for their [d]efencesuitable to their [c]onditions and as allowed by [l]aw.” 1 W.& M., ch. 2, § 7, in 3 Eng. Stat. at Large 441 (1689). Thenew provision was important, for several reasons. First, forthe first time, English law explicitly tied the carrying of arms

13 Subsequent royal edicts suggest that merely carrying firearmscaused terror even absent an intent to cause terror. See By the QuenneElizabeth I: A Proclamation Against the Carriage of Dags, and forReformation of Some Other Great Disorders (London, ChristopherBarker, 1594) (the public carry of arms caused “terrour [to] all peopleprofessing to travel and live peaceably”).

14 The Glorious Revolution overthrew James II, who was Catholic. In his place William and Mary took the throne. Mary, also known asQueen Mary II, was James’s daughter, but she was Protestant.


to a right of self-defense. Second, it recognized that even theright of self-defense could be curtailed by government action“as allowed by law.” Third, the right was not guaranteed tothe people generally, and the full exercise of the right wasoccasionally contingent upon the religion of the monarch inpower. See Diarmuid F. O’Scannlain, Glorious Revolution toAmerican Revolution: The English Origin of the Right toKeep and Bear Arms, 95 Notre Dame L. Rev. 397, 404–06(2019).

Blackstone characterized the new right as one to beararms in the interest of self-defense, but he acknowledged thatthe right was not absolute. The right to carry arms wassubject to government regulation, and thus the right of thepeople to “hav[e] arms for their defense” only extended as faras the right was “allowed by law.” 1 William Blackstone,Commentaries *130 (emphasis added). Blackstone continuedthat “these rights and liberties [are] our birthright to enjoy . . .unless where the laws of our country have laid them undernecessary restraints.” Id. at *131 (language modernized). Indeed, the right to carry arms was a “public allowance underdue restrictions.” Id. at *130. Blackstone’s example of sucha “due restriction[],” was the prohibition on publicly carryingweapons, codified in the Statute of Northampton. See 4William Blackstone, Commentaries *148–49.

B. Colonial Restrictions on the Right to Bear Arms in Public

Early American colonists brought to the New World theEnglish sensibilities over the carrying of arms in public. Anumber of colonies implemented restrictions on the carryingof arms similar to those found in the Statute of Northampton. Indeed, some colonies adopted the Statute of Northamptonalmost verbatim. The colonists shared the English concern


that the mere presence of firearms in the public squarepresented a danger to the community.

New Jersey acted first. In 1686 (three years prior to theEnglish Bill of Rights), the colony passed “An Act againstwearing Swords, &c.” in response to the “great complaint bythe inhabitants of [the] Province, that several persons [were]wearing swords, daggers, pistols, dirks, stilladoes, skeines, orany other unusual or unlawful weapons.” An Act againstSwords, &c., 1686 N.J. Laws 289, 289, ch. IX.15 Accordingly, the statute provided that “no person or personsafter publication hereof, shall presume privately to wear anypocket pistol, skeines, stilladers, daggers or dirks, or otherunusual or unlawful weapons within [the] Province.” Id. at290. The law further provided that “no planter shall ride orgo armed with sword, pistol, or dagger, upon the penalty offive pounds.” Id. The law exempted two groups: “allofficers, civil and military, and soldiers while in actualservice” and “all strangers, travelling upon their lawfuloccasion thro’ this Province, behaving themselvespeaceably.” Id.

15 We have not been pointed to any English counterpart for the NewJersey statute. The closest was a proclamation of King James I thatbanned the sale, wearing, or carrying of “Steelets, pocket Daggers, pocketDags and Pistols, which are weapons utterly unserviceable for defence,Militarie practise, or other lawfull use, but odious, and noted Instrumentsof murther, and mischiefe.” By the King James I: A ProclamationAgainst Steelets, Pocket Daggers, Pocket Dagges and Pistols, reprintedin 1 Stuart Royal Proclamations 359–60 (James F. Larkin & Paul L.Hughes eds., 1973). The weapons listed in the proclamation were ofparticular concern because they were so easily concealed. See Peruta,824 F.3d at 931. Nothing in the proclamation or the New Jersey statute,however, limited the prohibition to concealed carry.


Six years after New Jersey enacted its restriction on arms,Massachusetts Bay enacted its own restrictions. TheMassachusetts law was patterned after the Statute ofNorthampton. It outlawed affray, rioting, and disturbing orbreaching the peace. An Act for the Punishing of CriminalOffenders, 1692 Mass. Laws No. 6, at 11–12. In addition, thestatute authorized justices of the peace to arrest those that“ride or go armed Offensively before any of Their MajestiesJustices . . . by Night or by Day . . . .” Id. (spellingmodernized). The punishment for such action varied, but theoffender could be fined, have his or her armor and weaponsseized, be imprisoned until paying a surety, or even be boundover to answer the charge before a justice of the peace. Id.at 12.

New Hampshire enacted a similar restriction in 1699,which punished any person who went “armed offensively” or“put his Majesty’s subjects in fear” and outlawed affray,rioting, and disturbing the peace. 1699 N.H. Laws. 1. Punishment ranged from imprisonment to payment of asurety. Id. at 1–2. The offender also risked forfeiture of thearms or weapons, to be “sold for his Majesty’s use.” Id.

To the examples of prohibitions on public carry, we mustadd examples of colonial laws that not only permitted publiccarry, but mandated it. Some colonies required men to carryarms while attending church or other public gatherings. Theyalso protected travelers passing through the several coloniesand those assembled as a militia. For example, Virginiarequired colonists to carry arms to church. In a 1619 statute,it instructed “[a]ll persons whatsoever upon the Sabaoth daye[who] frequente divine service and sermons . . . [to] bearearmes [and] bring their pieces swordes, poulder and shotte.” Proceedings of the Virginia Assembly, 1619, in Narratives of


Early Virginia, 1606–25, at 273 (Lyon Gardiner Tyler ed.,1907). Any colonist refusing to carry arms to church wassubject to a fine of three shillings, paid to the church. Id.

Virginia’s mandate was a model for several othercolonies. Connecticut, Maryland, South Carolina, andGeorgia all required men to carry arms at church. See 1 ThePublic Records of the Colony of Connecticut 95 (1850)(“[O]ne person in every several house wherein is any soldieror soldiers, shall bring a musket, pistol or some piece, withpowder and shot, to each meeting . . . .” (spellingmodernized)); Proceedings of the Council of Maryland,1636–1667, reprinted in 3 Archives of Maryland 103 (1885)(“No man able to bear arms to go to church or Chappell . . .without fixed gun and 1 Charge at least of powder and shot.”(spelling modernized)); 7 The Statutes at Large of SouthCarolina 418 (1840) (requiring any person able to do so tobear arms to “places of public worship” to secure againstslave insurrections); 19 The Colonial Records of the State ofGeorgia (pt. 1) 137–38 (1911) (requiring every male, whitemilitiaman to carry firearms “on any Sunday or other times,to any church, or other place of divine worship”). PlymouthColony, prior to its merger with Massachusetts Bay, had alsoenacted a church-based firearm requirement in 1636, but itsmandate was seasonal. See The Compact with the Charterand Laws of the Colony of New Plymouth 102 (1836)(requiring arms at churches between April and Novemberannually).

At least two colonies required carrying arms to otherpublic gatherings. See 1 Records of the Governor andCompany of the Massachusetts Bay in New England 190(1853) (All eligible persons “shall come to the publicassemblies with their muskets, or other pieces fit for service.”


(spelling modernized)); 1 Records of the Colony of RhodeIsland and Providence Plantations in New England 94 (1856)(“It is ordered, that no man . . . shall come to any publicMeeting without his weapon.” (spelling modernized)).

Several colonies also required persons traveling outsideof the public square to arm themselves. Virginia,Massachusetts, Rhode Island, and Maryland all enacted somerequirements for travelers to carry arms. See 1 The Statutesat Large; Being a Collection of all the Laws of Virginia 127(1823) (“That no man go or send abroad without sufficientpartie will armed.”); 1 Records of the Governor and Companyof the Massachusetts Bay in New England 85 (1853) (“[I]t isordered, that no person shall travel single betwixt[Massachusetts] and Plymouth, nor without some arms . . . .”(spelling modernized)); 1 Records of the Colony of RhodeIsland and Providence Plantations in New England 94 (1856)(“It is ordered, that no man shall go two miles from the Townunarmed.” (spelling modernized)); Proceedings of theCouncil of Maryland, 1636–1667, reprinted in 3 Archives ofMaryland 103 (1885) (“No man able to bear arms to go . . .any considerable distance from home without fixed gun and1 Charge at least of powder and Shot.” (spellingmodernized)).16

16 Historical context offers some possible explanations for the tension. Some colonies’ issuance of carry requirements—especially to church,public gatherings, and other travel—reflects “adaptation to the realities ofcolonial life, especially [considering] the ongoing hostile relationship withNative Americans.” Cornell, 80 Law & Contemp. Probs. at 28. Inaddition to tense relations with Native Americans, southern colonies alsofeared the possibility of slave uprisings. Id. South Carolina’s church-carry mandate expressly acknowledged that risk. 7 Statutes at Large ofSouth Carolina 418 (requiring parishioners to carry arms to church so that


The overall effect that these various carry mandates hadon the right to bear arms is unclear, and there is some tensionbetween the various ordinances. What is clear is that thecolonies assumed that they had the power to regulate—whether through mandates or prohibitions—the publiccarrying of arms. This history may also evince a generalacceptance by local governments of some firearms in thepublic square. See Brief of Professors of Second AmendmentLaw et al., as Amici Curiae 17. But the public carrying ofarms was always subject to conditions prescribed by thelegislature.

The Statute of Northampton continued to influence statelaw in the interregnum between the Revolutionary War andthe adoption of the Constitution. Three years after the Treatyof Paris, Virginia enacted prohibitions on public carriage offirearms that tracked the Statute of Northampton. Virginia’sstatute provided that “no man, great nor small, . . . [shall] gonor ride armed by night nor by day, in fairs or markets, or inother places, in terror of the Country.” 1786 Va. Laws 33,ch. 21.

Early American history thus strongly suggests thatcolonists brought with them the English acquiescence tofirearm limitations outlined in the Statute of Northampton. The colonies and early American states enacted facsimiles ofthe Statute of Northampton’s broad prohibitions on the publiccarriage of firearms. And where the colonies did allow publiccarry—or even mandated it—those laws were tied to theoverarching duty to bear arms in defense of the community,and it was the role of local government, not individuals, to

South Carolinians “may be the better secured and provided against theinsurrections and other wicked attempts of negroes and other slaves”).


decide when that duty justified or mandated public carry. Atbottom, restrictions on firearms in public were prevalent incolonial law.

C. Post Second Amendment Restrictions on the Right to BearArms

The Constitution was ratified in 1789. Almostimmediately, Congress began work on a bill of rights, apromise the Federalists had made as a condition forratification. As the Court observed in Heller, “[d]uring the1788 ratification debates, the fear that the FederalGovernment would disarm the people in order to impose rulethrough a standing army or select militia was pervasive inAntifederalist rhetoric.” 554 U.S. at 598. The amendmentsthat became our Bill of Rights were proposed in 1789 andratified by 1791.

At the time of its adoption, the Bill of Rights did notapply to the states. Barron v. Mayor & City Council ofBaltimore, 32 U.S. (7 Pet.) 243 (1833); see United States v.Cruikshank, 92 U.S. 542, 553 (1875) (“The secondamendment . . . means no more than that it shall not beinfringed by Congress. This is one of the amendments thathas no other effect than to restrict the powers of the nationalgovernment, leaving the people to look for their protection [tostate law].”). Prior to the adoption of the Constitution, thestates—at the urging of the Continental Congress inanticipation of a declaration of independence—had adoptedtheir own constitutions, some of which expressly providedsome protection for the right to keep and bear arms. SeeHeller, 554 U.S. at 585–86, 585 n.8, 600–03 (discussing stateconstitutional provisions); Eugene Volokh, StateConstitutional Rights to Keep and Bear Arms, 11 Tex. Rev.


L. & Pol. 191 (2006) (compiling provisions by state and bydate).17 Accordingly, we have few relevant federal materials. As the Court explained in Heller, “[f]or most of our historythe Bill of Rights was not thought applicable to the states, andthe Federal Government did not significantly regulate thepossession of firearms by law-abiding citizens.” Heller,554 U.S. at 625. Therefore, the majority of the nineteenth-century cases we discuss in this section feature challenges tofirearms regulations that were made under state constitutionalanalogues to the Second Amendment, not the SecondAmendment itself, although some decisions refer to theSecond Amendment.18 As we discuss state regulation of

17 Not all the states adopted such a measure. California, Iowa,Maryland, Minnesota, New Jersey, and New York have never adopted aconstitutional guarantee to keep and bear arms. And some of the statesdid not adopt a guarantee until the twentieth century. Volokh, StateConstitutional Rights, 11 Tex. Rev. L. & Pol. at 193–204. AlthoughMaryland did not adopt a formal guarantee, the Maryland Declaration ofRights stated that “the inhabitants of Maryland are entitled to the commonlaw of England, . . . and to the benefit of such of the English statutes, asexisted at the time of their first emigration.” Md. Decl. of Rights, art. III(1776).

18 In some respects, the Second Amendment is less important thanstate constitutions and laws in helping us determine the scope of any pre-existing right to keep and bear arms. Congress had no general power overcrime, except in federal enclaves or territories. The Constitution gaveCongress authority over three enumerated crimes: counterfeiting, piracyand felonies on the high seas, and treason. U.S. Const. art. I, § 8, cls. 6,10; id. art. III, § 3, cl. 2. Any other authority over crime that Congressasserts must be tied to an enumerated power—such as the CommerceClause—through the Necessary and Proper Clause. Id. art. I, § 8, cl. 18. See United States v. Lopez, 514 U.S. 549, 561 n.3 (1995) (“Under ourfederal system, the States possess primary authority for defining andenforcing the criminal law.”) (quotation marks and citations omitted);Screws v. United States, 325 U.S. 91, 109 (1945) (plurality opinion)(“[T]he administration of criminal justice rests with the States except as


firearms, we will note where the state had an applicableguarantee in its own constitution.

1. Post-Ratification Restrictions

After ratification of the U.S. Constitution, and subject totheir own state constitutions, the states continued to adoptlaws that restricted the public carrying of arms. See SaulCornell & Nathan DeDino, A Well Regulated Right: TheEarly American Origins of Gun Control, 73 Fordham L. Rev.487, 505 (2004) (examining “[a] variety of laws regulatingfirearms . . . already in place during the Founding Era”). Many of these laws were influenced by the Statute ofNorthampton. North Carolina provides us with a primeexample. Just a year after the ratification of the Bill ofRights, North Carolina adopted, nearly verbatim, the Statuteof Northampton. Indeed, the statute had a heading thatrecited that these were “Statutes made at Northampton . . . inthe Second Year of the Reign of Edward the Third, and in theYear of our Lord 1328.” See 1792 N.C. Laws 60, ch. 3. Ironically, notwithstanding its recent independence, NorthCarolina did not even remove the references to the king:

It is enacted, that no man great nor small, orwhat condition soever he be, except theKing’s servants in his presence . . . go nor ridearmed by night nor by day, in fairs, markets,

Congress, acting within the scope of those delegated powers, has createdoffenses against the United States.”). Given that relationship between thefederal government and the states, early state constitutions, laws, andpractices may be a more reliable indicator of what we thought the statescould and could not do under the “pre-existing [right]” that we “inheritedfrom our English ancestors.” Heller, 554 U.S. at 599 (quoting Robertsonv. Baldwin, 165 U.S. 275, 281 (1897)).


nor in the presence of the King’s Justices, orother ministers, nor in no part elsewhere.

Id. at 60–61.19 As we have noted, Massachusetts had firstenacted a law based on the Statute of Northampton in 1692. In 1795, it repealed a portion of the 1692 Act but kept thefirearms restrictions. 1795 Mass. Acts 436, ch. 2. The 1795version had strong echoes of the Statute of Northampton andauthorized its justices of the peace to arrest “all affrayers,rioters, disturbers, or breakers of the peace, and such as shallride or go armed offensively, to the fear or terror of the goodcitizens of this Commonwealth.” Id.20

2. Nineteenth-Century Restrictions

a. The statutes. Early American versions of the Statuteof Northampton continued into the nineteenth century. In

19 North Carolina’s Declaration of Rights, adopted in 1776, provided: “That the people have a right to bear arms, for the defence of the State. . . .” N.C. Decl. of Rights § XVII (1776).

North Carolina’s reliance upon English law would prove to becontroversial over the next century. In 1836, the North Carolinalegislature explicitly repealed “all the statutes of England or Great Britain”in use in the state, 1 N.C. Rev. Stat. 52–53, ch. 1, § 2 (1837), whichprompted a challenge to its Northampton analogue. The Supreme Courtof North Carolina upheld the statute, however, finding that the Statute ofNorthampton did not create the substantive prohibitions therein. State v.Huntly, 25 N.C. 418, 420–21 (1843). Citing Blackstone and Hawkins, thecourt concluded that the statute’s prohibitions “[had] been always anoffen[s]e at common law.” Id. at 421 (citation and emphasis omitted).

20 The Massachusetts Constitution of 1780 provided: “The peoplehave a right to keep and to bear arms for the common defence.” Mass.Const. of 1780, pt. 1, art. 17.


1801, Tennessee prohibited any person from “go[ing] armedto the terror of the people, or privately carry[ing] any dirk,large knife, pistol, or any other dangerous weapon, to the fearor terror of any person.” 1801 Tenn. Pub. Acts 260, ch. 22§ 6.21 Anyone carrying a firearm in violation of the statutewas subject to a fine and potential imprisonment. Id. at 261. Repeat offenders could be indicted and prosecuted forbreaching the peace. Id. Other states followed. Louisianapunished “any person who shall be found with any concealedweapon, such as a dirk, dagger, knife, pistol or any otherdeadly weapon concealed in his bosom, coat or in any otherplace about him that do not appear in full open view.” La.Acts, 1st Legis., 2d Sess. 172 (1813). Maine also enacted aversion of the Statute of Northampton in the early nineteenthcentury, outlawing “affrayers, rioters, disturbers or breakersof the peace, and such as shall ride or go armed offensively,to the fear or terror of the good citizens of this State.” 1821Me. Laws 285, ch. 73 § 1.22 It also imposed a surety systemwhereby potential offenders would pay a fine to ensure theirfuture good behavior. Id.

The early nineteenth century saw new restrictions onfirearms that incorporated broader prohibitions than the onefound in the Statute of Northampton. These restrictions moreforcefully prohibited the mere act of carrying a firearminstead of coupling going armed with affray, rioting, or

21 The Tennessee Constitution of 1796 provided: “That the freemenof this State have a right to keep and to bear [a]rms for their commondefence.” Tenn. Const. of 1796, art. XI, § 26.

22 Maine had adopted a constitution only two years earlier. Itprovided: “Every citizen has a right to keep and bear arms for the commondefence; and this right shall never be questioned.” Me. Const. of 1819,art. I, § 16.


disturbing the peace. The major changes began withTennessee and Massachusetts. Recall that Tennessee hadenacted a firearm restriction in 1801 that prohibited goingarmed “to the terror of the people.” 1801 Tenn. Pub. Acts260, ch. 22, § 6. It revised that restriction in 1821, statingthat “every person so degrading himself, by carrying . . . beltor pocket pistols, either in public or in private” was subject toa fine for each offense. 1821 Tenn. Pub. Acts 15, ch. 13. There was no question of whether proof of terror or intentwas required. The statute simply outlawed such carry. It didexempt the carrying of “a knife of any size in a conspicuousmanner on the strop of a shot pouch.” Id. at 16.

Massachusetts adopted a more generous change andbecame a template for other states. As we have observed, in1795 Massachusetts renewed its colonial firearms restrictions,enacting a firearms regulation that resembled the Statute ofNorthampton. See 1795 Mass. Acts 436, ch. 2 (allowingevery justice of the peace to arrest all that “ride or go armedoffensively, to the fear or terror of the good citizens of [the]Commonwealth”). In 1836 Massachusetts broadly revampedits criminal law; in the process it abandoned the Northamptonframework in favor of a good-cause restriction. In Chapter134, entitled “Of Proceedings to Prevent the Commission ofCrimes,” Massachusetts added eighteen sections dealing withcomplaints, arrests, trials, appeals, penalties and sureties.23 Section 16 provided:

If any person shall go armed with a dirk,dagger, sword, pistol, or other offensive and

23 We discuss the details of the Massachusetts surety law in greaterdetail, infra at note 40 and accompanying text. We covered the Englishpractice of requiring a surety of the peace supra at note 12.


dangerous weapon, without reasonable causeto fear an assualt [sic] or other injury, orviolence to his person, or to his family orproperty, he may, on complaint of any personhaving reasonable cause to fear an injury, orbreach of the peace, be required to findsureties for keeping the peace, for a term notexceeding six months, with the right ofappealing as before provided.

1836 Mass. Acts 750, ch. 134, § 16. The 1836 Massachusettsstatute permitted public carry, but limited it to persons whocould demonstrate their need to carry for the protection ofthemselves, their families, or their property. In effect, theMassachusetts law provided that such weapons could not becarried in public unless the person so armed could show“reasonable cause.”

A number of states followed Massachusetts and adoptedsome version of Chapter 134, including Section 16. Many ofthose states adopted Section 16 verbatim. For example, in1839 Wisconsin adopted “An Act to prevent the commissionof crimes.” Section 16 was a word-for-word (with minorchanges in punctuation) replication of Section 16 of the 1836Massachusetts statute. 1838 Wis. Sess. Laws 381, § 16. Other states and territories followed. If they did not adoptSection 16 verbatim, the changes were minor, but thereferences to the 1836 Massachusetts law were unmistakable. See 1841 Me. Laws 709, ch. 169, § 16; 1846 Mich. Laws 692,ch. 162, § 16;24 1847 Va. Laws 129, ch. XIV, § 16; 1851

24 The Michigan Constitution of 1835 provided: “Every person hasa right to bear arms for the defense of himself and the State.” Mich.Const. of 1835, art. I, § 13.


Minn. Pub. Acts 528, ch. 112, § 18; 1854 Or. Laws 220, ch.XVI, § 17; 1870 W. Va. Acts 703, ch. CLIII, § 8. Thegiveaway was Massachusetts’ distinctive phrase “dirk,dagger, sword, pistol, or other offensive and dangerousweapon.” Of these states, only Virginia and West Virginiadid not use the phrase. Instead they simply prohibited thecarrying of “any dangerous or offensive weapon” or of a“deadly and dangerous weapon,” respectively.

Other states followed Massachusetts’ formulation butqualified the right in some other way. Pennsylvania, forexample, provided an introductory exemption: “If any person,not being an officer on duty in the military or naval service ofthe state or of the United States, shall go armed with dirk,dagger, sword or pistol . . . .” 1862 Pa. Laws 250, § 6(emphasis added).25 Texas expanded the list of prohibiteditems. In a statute entitled “An Act to Regulate the Keepingand Bearing of Deadly Weapons,” Texas regulated thecarrying of “any pistol, dirk, dagger, slung-shot, sword-cane,spear, brass-knuckles, bowie-knife, or any other kind ofknife.” 1874 Tex. Gen. Laws 1322, art. 6512; see also id.art. 6511 (entitled “An Act Regulating the Right to Keep andBear Arms;” prohibiting anyone carrying “a bowie-knife,dirk, or butcher-knife, or firearms, whether known as a six-shooter, gun, or pistol of any kind” from entering “any churchor religious assembly, any school-room or other place wherepersons are assembled for educational, literary, or scientificpurposes, or into a ballroom, social party, or other socialgathering . . . or to any election precinct . . . or to any otherplace where people may be assembled . . . , or any other

25 The Pennsylvania Constitution of 1790 provided: “The right ofcitizens to bear arms in defence of themselves and the State shall not bequestioned.” Pa. Const. of 1790, art. IX, § XXI.


public assembly”).26 The Territories of Arizona and Idahoeach enacted some version of the expanded Texas list. 1889Ariz. Sess. Laws 16–17, No. 13, §§ 1, 3; 1889 Idaho Laws 23,§ 1.27

A number of other states regulated the carrying of arms,even though they did not follow the Massachusetts model. Delaware, for example, continued to follow the outline of theStatute of Northampton. 1852 Del. Stat. 333, ch. 97, § 13(making subject to arrest “all affrayers, rioters, breakers anddisturbers of the peace, and all who go armed offensively tothe terror of the people”). Kansas and the Territory ofWyoming also prohibited both the concealed and opencarrying of weapons, although with more modern language. 1881 Kan. Sess. Laws 80, ch. XXXVII, § 23 (“The [city]council shall prohibit and punish the carrying of firearms, orother dangerous or deadly weapons, concealed or otherwise. . . .”);28 1876 Wyo. Sess. Laws 352, ch. 52, § 1 (prohibitingthe “bear[ing] upon his person, concealed or openly, any firearm or other deadly weapon, within the limits of any city,town or village”).

26 The Texas Constitution of 1869 provided: “Every person shall havethe right to keep and bear arms, in the lawful defence of himself or theState, under such regulations as the legislature may prescribe.” Tex.Const. of 1869, art. I, § 13.

27 Idaho was admitted to the Union in 1890. The Idaho Constitutionof 1889 provided: “The people have the right to bear arms for theirsecurity and defence; but the legislature shall regulate the exercise of thisright by law.” Idaho Const. of 1889, art. I, § 11.

28 The Kansas Bill of Rights, adopted in 1859, provided: “The peoplehave the right to bear arms for their defense and security . . . .” Kan.Const. of 1859, Bill of Rights § 4.


Most, but not all, of the weapons enumerated in thesestatutes were capable of being concealed. The statutes wehave discussed thus far, however, did not prohibit only theconcealed carrying of such weapons. Some states, however,did so limit their laws. Alabama, for example, punished “anyone who carrie[d] concealed about his person a pistol, or anyother description of fire arms, not being threatened with, orhaving good reason to apprehend an attack, or travelling. . . .” 1852 Ala. Laws 588, art. VI, § 3274.29 Georgiaprohibited “[a]ny person having or carrying about his person,unless in an open manner and fully exposed to view, anypistol, (except horseman’s pistols,) dirk, sword in a cane,spear, bowie-knife, or any other kind of knives . . . .” 1861Ga. Laws 859, div. 9, § 4413.

On the other hand, two territories had nominal concealedweapons prohibitions that also applied to open carry. NewMexico made it “unlawful for any person to carry concealedweapons on their persons, of any class of pistols whatever,bowie knife . . . Arkansas toothpick, Spanish dagger, slung-shot, or any other deadly weapon.” 1860 N.M. Laws 94, § 1(emphasis added). However, in the following section, itprescribed the punishment for any person who “carr[ies]about his person, either concealed or otherwise, any deadlyweapon of the class and description mentioned in thepreceding section . . . .” Id. § 2 (emphasis added). TheTerritory of Oklahoma had a complex series of prohibitionsin an article entitled “Concealed Weapons,” but some of theprohibitions applied to open carry. For instance, oneprovision made it “unlawful for any person in the Territory of

29 The Alabama Constitution of 1819 provided: “Every citizen has aright to bear arms in defence of himself and the State.” Ala. Const. of1819, art. I, § 23.


Oklahoma to carry concealed . . . any pistol, revolver, bowieknife, dirk, dagger, slung-shot, sword cane, spear, metalknuckles, or any other kind of knife . . . .” 1891 Okla. Sess.Laws 495, art. 47, § 1. But the next section prohibited “anyperson . . . to carry upon or about his person any pistol,revolver, bowie knife, dirk knife, loaded cane, billy, metalknuckles, or any other offensive or defensive weapon, exceptas in this article provided.” Id. § 2 (emphasis added). Thearticle then made exceptions for “[P]ublic officers while inthe discharge of their duties,” id. § 4, and persons carrying“shot-guns or rifles for the purpose of hunting,” id. § 5. Additionally, the statute made it “unlawful for any person,except a peace officer, to carry into any church or religiousassembly, any school room . . . or into any circus, show orpublic exhibition of any kind, or into any ball room, or to anysocial party or social gathering, or to any election, or to anyplace where intoxicating liquors are sold, or to any politicalconvention, or to any other public assembly, any of theweapons designated in sections one and two of this article.” Id. § 7. In the end, section 7 was a broad prohibition oncarrying arms into public places.

Before we discuss the state cases, we have severalobservations on the statutes. First, the states broadly agreedthat small, concealable weapons, including firearms, could bebanned from the public square. Although the record is notuniform, the vast majority of the states did not distinguishbetween regulation of concealed carry and regulation of opencarry of weapons that were capable of being concealed. None of the statutes we have discussed in this section makesany mention of long-barreled guns, such as muskets, rifles, orshotguns. Second, although many of the states hadconstitutional provisions that guaranteed some kind of rightto keep and bear arms, state legislatures evidently did not


believe that the restrictions we have discussed here wereinconsistent with their state constitutions. At the same time,the territories enacted similar restrictions, and theterritories—unlike the states—would have been subject to theSecond Amendment. U.S. Const. art. IV, § 3, cl. 2.

The Territory of Hawai‘i’s enumerated restrictions oncarrying weapons were well within this tradition. Hawai‘i’s1852 law punished “[a]ny person not authorized by law, whoshall carry, or be found armed with, any bowie-knife, sword-cane, pistol, air-gun, slung-shot or other deadly weapon.” 1852 Haw. Sess. Laws 19, § 1. Like many states, Hawai‘iexempted persons “authorized to bear arms,” includingpersons “holding official, military, or naval rank” so long asthe weapon was “worn for legitimate purposes.” Id. § 2.

b. The cases. The parties have directed our attention toa number of reported state cases that address the right to keepand bear firearms. They are largely from Southern states;even then, they are far from uniform in their reasoning andconclusions. We will start with the cases in which the statecourts adopted the most generous protections for thosebearing arms. Our first such case is Bliss v. Commonwealth,12 Ky. (2 Litt.) 90 (1822). Like many statutes we have seen,Kentucky law banned the carrying of concealed weapons,including pocket pistols, dirks, large knives and sword-canes. Id. at 90. Bliss was charged with carrying a sword in a caneand contended that the Kentucky Constitution prohibited suchrestrictions.30 Id. A divided Kentucky Court of Appeals,Kentucky’s highest court, held the statute unconstitutional.

30 The Kentucky Constitution provided: “That the right of the citizensto bear arms in defence of themselves and the State shall not bequestioned.” Ky. Const. of 1799, art. X, § 23.


The court determined that the right to bears arms “existed atthe adoption of the constitution . . . [and] consisted in nothingelse but in the liberty of the citizens to bear arms.” Id. at 92. The court took a bright-line position on any differencebetween the state regulating and prohibiting the carrying ofarms: “in principle, there is no difference between a lawprohibiting the wearing concealed arms, and a law forbiddingthe wearing such as are exposed; and if the former beunconstitutional, the latter must be so likewise.” Id. Thecourt held the act “unconstitutional and void.” Id. at 93. Onejudge dissented, but did not file an opinion. Id. at 94.

Bliss’s expansive view of the right to carry firearms wasshort lived. Following the Kentucky Court of Appeals’opinion, the legislature amended the constitution to allow thetype of restriction the court had struck down. Ky. Const. of1850, art. XIII, § 25 (“That the rights of the citizens to beararms in defence of themselves and the State shall not bequestioned; but the general assembly may pass laws toprevent persons from carrying concealed arms.”). SeePeruta, 824 F.3d at 935–36 (citing Robert M. Ireland, TheProblem of Concealed Weapons in Nineteenth-CenturyKentucky, 91 Reg. Ky. Hist. Soc’y 370, 373 (1993)(discussing the aftermath of the decision; noting that theGovernor criticized the court for reading the state constitutionso literally)). Bliss appears to be an isolated decision. Thedecision was not followed by any other court, and it wasconsidered and rejected by state courts in Alabama, Arkansas,Georgia, and Tennessee. See Peruta, 824 F.3d at 936;Strickland v. State, 72 S.E. 260, 261 (Ga. 1911) (“[Bliss] has


not been followed, but severely criticised. The decisions arepractically unanimous to the contrary.”); id. (citing cases).31

No other court went as far as the Kentucky court in Bliss;indeed, courts in Georgia, Alabama, and Louisiana deviatedfrom Bliss by holding that restrictions on concealed weaponswere permissible. Georgia drew its line between open andconcealed carry in reversing a conviction for carryingfirearms. In Nunn v. State, 1 Ga. 243 (1846), Nunn wascharged with carrying pistols, but the indictment failed tostate whether he carried them in secret. Discussing Bliss, theGeorgia Supreme Court relied largely on the SecondAmendment of the U.S. Constitution, denying that “becausethe people withheld this arbitrary power of disfranchisementfrom Congress [in the Second Amendment], they everintended to confer it on the local legislatures.” Id. at 250. The court concluded that

so far as the [challenged state] act . . . seeks tosuppress the practice of carrying certainweapons secretly, that it is valid, inasmuch asit does not deprive the citizen of his naturalright of self-defence, or of his constitutionalright to keep and bear arms. But that so muchof it, as contains a prohibition against bearingarms openly, is in conflict with theConstitution, and void.

31 The decision, however, is notable for another reason. Prompted bythe decision, Kentucky became the first state to write into its constitutionwhat had long been implicit: that “the general assembly may pass laws toprevent persons from carrying concealed arms.” Ky. Const. of 1850, art.XIII, § 25.


Id. at 251. Because Nunn had not been charged with carryinghis pistol in secret, the judgment of conviction was reversed.32 See also In re Brickey, 70 P. 609, 609 (Idaho 1902) (holdingunconstitutional under both the state and federal constitutionsa statute prohibiting the carrying of deadly weapons in thecity; suggesting that a statute prohibiting concealed carrywould be constitutional).

32 When Nunn was decided, there was no Georgia provisionconcerning the right to keep and bear arms. Following the Civil War, theGeorgia Constitution was revised to read: “A well regulated Militia beingnecessary to the security of a free people, the right of the people to keepand bear arms shall not be infringed; but the General Assembly shall havepower to prescribe by law the manner in which arms may be borne.” Ga.Const. of 1868, art. I, § XIV. In Hill v. State, 53 Ga. 472 (1874), theGeorgia Supreme Court upheld against a state constitutional challenge astatute prohibiting the carrying of a pistol or revolver, among other“deadly weapon[s],” in courts, places of worship, and public gatherings. Id. at 480–81 (“The manner of bearing arms includes not only theparticular way they may be carried upon the person, that is openly orsecretly, on the shoulder or in the hand, loaded or unloaded, cocked oruncocked, capped or uncapped, but it includes, also, the time when, andthe place where, they may be borne.”).

In 1877, the Georgia Constitution was revised again, and the right tobear arms lost its prefatory clause. Ga. Const. of 1877, art. I, § 1, para.XXII (“The right of the people to keep and bear arms shall not beinfringed, but the General Assembly shall have power to prescribe, themanner in which arms may be borne.”). In Strickland, the GeorgiaSupreme Court upheld against a state constitutional challenge a lawrequiring a license for any person to “carry[] about his person” a pistol orrevolver. 72 S.E. at 260. The court cited the Statute of Northampton andother English sources. The court observed that “no one will contend thatchildren have a constitutional right to go to school with revolvers strappedaround them, or that men and women have a right to go to church, or sitin the courtrooms, or crowd around election precincts, armed likedesparadoes, and that this is beyond the power of the Legislature toprevent.” Id. at 264.


The Alabama Supreme Court changed its views over timeon the state’s power to regulate open carry. Like Georgia,Alabama first upheld the power of the state legislature toprohibit carrying concealed weapons. In State v. Reid, 1 Ala.612 (1840), the Alabama Supreme Court affirmed Reid’sconviction for carrying a concealed pistol.33 The courtconsidered Bliss, but refused to go so far. Instead, it was“incline[d] to the opinion that the Legislature cannot inhibitthe citizen from bearing arms openly, because [theConstitution] authorizes him to bear them for the purposes ofdefending himself and the State, and it is only when carriedopenly, that they can be efficiently used for defence.” Id. at619. But the court also understood the right to bear armsopenly to be subject to some degree of regulation. TheAlabama Constitution had not “denied to the Legislature, theright to enact laws in regard to the manner in which armsshall be borne. The right guarantied to the citizen, is not tobear arms upon all occasions and in all places, but merely ‘indefence of himself and the State.’” Id. at 616. As a result,the legislature retained “the authority to adopt suchregulations of police, as may be dictated by the safety of thepeople and advancement of public morals.” Id.

An early twentieth-century case from Alabama, althoughoutside our current historical discussion, shows that thislimiting principle first articulated in Reid had teeth. In Isaiahv. State, 176 Ala. 27 (1911), the Alabama Supreme Courtupheld, under the same provision of the AlabamaConstitution, a statute prohibiting the carrying of a pistol“about his person on premises not his own or under his

33 The Alabama Constitution stated that “[e]very citizen has a right tobear arms in defence of himself and the State.” Ala. Const. of 1819, art. I,§ 23.


control.” Id. at 28. The court concluded that the statuteproperly restricted the manner and places in which armscould be carried. Id.; see also id. at 34 (McClellan, J.,concurring) (stating that the legislature could prohibit aperson “to carry a pistol off one’s premises”). In hisconcurrence, and citing Reid, Justice McClellan made clearwhat is unstated in the majority: that the legislature retainedthe authority to regulate where and how a person couldlegally carry a firearm in Alabama. Id. at 37–38 (McClellan,J., concurring) (“To deny the validity of [the regulation]would, without doubt, restrict the legislative right to regulate. . . to the manner only of bearing arms; and this would clothethe constitutional right to bear arms with an effect to deny tolegislative function the power to determine . . . what are armsproper to be borne . . . [or] at what places arms of a definedcharacter should not be borne.”). Isaiah tells us thatAlabama’s right to carry openly, even if constitutionallyprotected, was nevertheless amenable to even severerestrictions by the state legislature.

The Louisiana Supreme Court also marked the differencebetween concealed carry and open carry, albeit in dicta. An1813 statute prohibited concealed carriage of enumerateddangerous weapons. Chandler was charged with murderusing a Bowie knife; he claimed it was in self defense. In thecourse of describing the statute, the Louisiana Supreme Courtobserved that the prohibition on concealed weapons was“absolutely necessary to counteract a vicious state of society. . . and to prevent bloodshed and assassinations committedupon unsuspecting persons. It interfered with no man’s rightto carry arms . . . ‘in full open view,’ which places men uponan equality.” State v. Chandler, 5 La. Ann. 489, 489–90(1850). In State v. Smith, 11 La. Ann. 633 (1856), Smith wascharged with carrying a concealed weapon. The statute


specified that a weapon was concealed when it did not appear“in full open view.” Id. at 634. Smith contended that theweapon was partially exposed and, therefore, not concealed. The Louisiana Supreme Court disagreed. Citing the SecondAmendment, the court commented that the amendment was“never intended to prevent the individual States fromadopting such measures of police as might be necessary, inorder to protect the orderly and well disposed citizens fromthe treacherous use of weapons not even designed for anypurpose of public defence . . . .” Id. at 633. As to thequestion before it, the court held that partial concealment wasa violation of the statute. It appeared to exempt from thestatute “the extremely unusual case of the carrying of suchweapon in full open view, and partially covered by the pocketor clothes,” but not “where the partial exposure is the resultof accident or want of capacity in the pocket to contain, orclothes fully to cover the weapon.” Id. at 634. Finally, inState v. Jumel, 13 La. Ann. 399 (1858), the LouisianaSupreme Court upheld a conviction for carrying a concealedweapon and commented that the statute “does not infringe theright of the people to keep or bear arms. It is a measure ofpolice, prohibiting only a particular mode of bearing armswhich is found dangerous to the peace of society.” Id.at 399–400.

In contrast to these states, other states—also from theSouth—upheld good-cause restrictions on the open carry ofcertain dangerous firearms. The Texas Supreme Court did soin a pair of cases. In English v. State, 35 Tex. 473 (1871),English had been charged under the Act of April 12, 1871,which prohibited the carrying of deadly weapons, including“pistols, dirks, daggers, slungshots, swordcanes, spears,brass-knuckles and bowie knives,” unless the carrier couldshow an “exceptional case[]” of self-defense. Id. at 474, 477.


At trial, English proved that the pistol was not loaded and wasinoperable. Id. at 473. The court took note of various statedecisions, including the Alabama and Georgia decisions. Italso referred to the Statute of Northampton, Sir John Knight’sCase, and Blackstone. Id. at 476. Analyzing the SecondAmendment, the court concluded that its intended scope waslimited to arms that were “useful and proper to an armedmilitia.” Id. at 474 (“Can it be understood that these [deadlyweapons named in the statute] were contemplated by theframers of our bill of rights? Most of them are the wickeddevices of modern craft.”). The Texas Supreme Courtrejected as “simply ridiculous” the idea that the specificweapons banned in the statute were “proper or necessaryarms of a ‘well-regulated militia.’” Id. at 476; see id. (“Theword ‘arms’ . . . refers to the arms of a militiaman or soldier,and the word is used in its military sense.”). Turning next toEnglish’s challenge under the state constitution, the courtdetermined that the Texas Constitution “confers upon thelegislature the power to regulate the privilege [to bear arms]”so long as it does not “tak[e] it away.” Id. at 478.34 The courtconcluded that Texas law restricted, but did not deprive, itsresidents of the right to bear arms. No one “should claim theright to carry upon his person any of the mischievous devicesinhibited by the statute, into a peaceable public assembly, as,for instance into a church, a lecture room, a ball room, or anyother place where ladies and gentlemen are congregatedtogether.” Id. at 478–79.

34 The Texas Constitution provided: “Every person shall have theright to keep and bear arms, in the lawful defence of himself or the State,under such regulations as the legislature may prescribe.” Tex. Const. of1869, art. I, § 13.


In a later case, the Texas Supreme Court clarified that theuse of “arms” in the Texas Constitution does not refer “onlyto the arms of a militiaman or soldier.” Rather, the weapons“secured [in] the right to keep and bear” arms “must be sucharms as are commonly kept, according to the customs of thepeople, and are appropriate for open . . . use in self-defense.” State v. Duke, 42 Tex. 455, 458 (1875) (upholding the samegood-cause restriction challenged in English). The courtcounted among such defensive weapons “the double-barreledshot-gun, the huntsman’s rifle, and such pistols at least as arenot adapted to being carried concealed,” such as “the dragoonor holster pistol.” Id. at 458–59.

Other, more extensive firearms regulations were heldconstitutional, including restrictions on open carry that weretailored to small and concealable weapons. In Andrews v.State, 50 Tenn. 165 (1871), Andrews was charged withcarrying a pistol in violation of state law. The Tennesseestatute in question made it unlawful “for any person topublicly or privately carry a dirk, swordcane, Spanish stiletto,belt or pocket pistol or revolver.” Id. at 171 (quoting Act ofJune 11, 1870, § 1).35 Andrews argued that the weapon hewas charged with carrying was not one encompassed by thestatute. The Tennessee Supreme Court agreed and overturnedhis conviction. The court reasoned that the right to bear armswas “the right to use such arms for all the ordinary purposes,and in all the ordinary modes usual in the country.” Id.at 178. Keeping in mind “a knowledge of the habits of ourpeople, and of the arms in the use of which a soldier should

35 Tennessee’s Constitution of 1870 provided: “That the citizens ofthis State have a right to keep and to bear arms for their common defense;but the [L]egislature shall have power by law, to regulate the wearing ofarms with a view to prevent crime.” Tenn. Const. of 1870, art. I, § 26.


be trained,” the court held that “the rifle of all descriptions,the shot gun, the musket, and repeater,” were “the usual armsof the citizen of the county.” Id. at 179. Although the courtconcluded that “the right to keep such arms, can not beinfringed or forbidden by the Legislature,” it acknowledgedthat their use could “be subordinated to such regulations andlimitations as are or may be authorized by the law of theland.” Id. at 179–80. The court declared the statuteconstitutional, at least insofar as it prohibited “belt or pocketpistol[s].” It reserved judgment on the statute’s prohibitionagainst “revolvers” because the evidence was unsettled as towhether the term referred to a “repeater[,which] is a soldier’sweapon,” the carrying of which could not be constitutionallyprohibited. Id. at 186–87. The court acknowledged that eventhe weapons lawfully prohibited by the statute might be usedin one’s self-defense. Nevertheless, the court found that

[t]he law allows ample means of self-defense,without the use of the weapons which we haveheld may be rightfully prescribed by thisstatute. The object being to banish theseweapons from the community by an absoluteprohibition for the prevention of crime, noman’s particular safety, if such case couldexist, ought to be allowed to defeat this end.

Id. at 189; see also Aymette v. State, 21 Tenn. 154, 160–61(1840) (suggesting, in dicta, that “swords, muskets, rifles,etc., must necessarily be borne openly . . . to bear arms indefence of themselves [and the state]”). For the court inAndrews, the right of individual self-defense did not trumpthe legislature’s ability to regulate—or even“banish”—certain types of firearms from the public square. In a companion case, Page v. State, 50 Tenn. 198 (1871), the


court upheld Page’s conviction for carrying a revolver. The“revolver” was only about eight inches long, and the courtconcluded it was not a “an arm for war purposes” and thuscould be constitutionally prohibited by the state legislatureunder Andrews. Id. at 198. In a subsequent case, the courtupheld an indictment for carrying an army pistol that was notdisplayed in hand. State v. Wilburn, 66 Tenn. 57 (1872).

Like Tennessee, Arkansas upheld a ban on open carry ofcertain dangerous weapons. In Fife v. State, 31 Ark. 455(1876), the Arkansas Supreme Court upheld Fife’s convictionfor carrying a pistol in hand. The court looked at “theprohibited list of weapons,” under the relevant statelaw—including the pistol, dirk, Bowie knife, swordcane andbrass knuckles—and found that the state legislature intendedto prevent “known public mischief,” the pistol being “usuallycarried in the pocket, or of a size to be concealed about theperson, and used in private quarrels and brawls.” Id. at 461. It upheld the law under Arkansas’s Constitution, whichguaranteed that “[t]he citizens of this State shall have theright to keep and bear arms for their common defense.” Ark.Const. of 1874, art. II, § 5. In a later case, Haile v. State,38 Ark. 564 (1882), the court confirmed the legislature’spower to prescribe the permissible manner of carrying aweapon in public, including weapons used in war. Haile wascarrying a pistol at his waist. An Arkansas law, adopted in1881, prohibited the carrying of “such pistol as is used in thearmy or navy of the United States, in any manner, exceptuncovered, and in the hand.” Id. at 565. The court rejectedthe claim that the right to keep and bear arms guaranteed“protection to the citizen, in going, with convenience tohimself, and after his own fashion, prepared at all times toinflict death upon his fellow-citizens, upon the occasion ofany real or imaginary wrong.” Id. at 566. Although the


Arkansas Constitution did not expressly reserve to thelegislature the right to regulate arms, the court thought itfollowed “from the undefined police powers, inherent in allgovernments.” Id. at 567.36

The cases, much more so than the statutes, are divided. As the Supreme Court of Georgia so eloquently put it “‘tothomines, quot sententiae’—so many men, so manyopinions!” Nunn, 1 Ga. at 248. Cf. Isaiah, 176 Ala. at 35(McClellan, J., concurring) (“There is wide and fundamentaldivergence of opinion upon the scope and effect ofconstitutional provisions [concerning the right to beararms].”); City of Salina v. Blaksley, 83 P. 619, 620 (Kan.1905) (“[T]he carrying of deadly weapons has been thesubject of much dispute in the courts. The views expressedin the decisions are not uniform, and the reasonings of thedifferent courts vary.”). In a trenchant decision summarizing

36 Fife and Haile were not the only cases from the Arkansas SupremeCourt to evaluate the constitutionality of a firearms restrictions under thestate constitution. Both cases built on an 1842 concealed-carry decision,which concluded that the “[l]egislature possesses competent powers toprescribe, by law, that any and all arms, kept or borne by individuals, shallbe so kept and borne as not to injure or endanger the private rights ofothers . . . .” State v. Buzzard, 4 Ark. 18, 27 (1842) (op. of Ringo, C.J.). See Ark. Const. of 1836, art. II, § 21 (“That the free white men of thisState shall have a right to keep and to bear arms for their commondefence.”).

Though Buzzard did not involve open carry, the court’s reasons forupholding the statute reveal an expansive understanding of thelegislature’s authority to regulate public-arms carriage. In the court’sview, “if the right to keep and bear arms be subject to no legal control orregulation whatever, it might, and in time to come doubtless will, be soexercised as to produce in the community disorder and anarchy.” Id. at 21(op. of Ringo, C.J.).


the debates, the Supreme Court of Georgia commented thatthere were

two general lines of reasoning [that] havebeen employed in upholding [statutesregulating the carrying of certain weapons]: First, that such provisions are to be construedin the light of the origin of the constitutionaldeclarations . . . ; and[] second, that the rightto bear arms, like other rights of person andproperty, is to be construed in connection withthe general police power of the state, and assubject to legitimate regulation thereunder.

Strickland, 72 S.E. at 262. The court noted that some statesexpressly reserved to the legislature the power to regulatearms, but the court thought that “even where such expressionsdo not occur,” the state retains some general police power“unless the language of the instrument itself should excludesuch a construction.” Id. Critically, the court observed that“if the right to bear arms includes deadly weapons of everycharacter, . . . [then] the citizen [is] guaranteed the right tocarry weapons or arms, in the broadest meaning of that term,whenever, wherever, and however he please[s]”—apossibility that the court dismissed by holding that thelicensing regulation at issue was “legitimate and reasonablywithin the police power.” Id. at 262–63. The court alsorejected the contention that the right to bear arms wasuniquely immune from reasonable regulation. See id. at 264(“Many persons are required to obtain a license beforeengaging in certain businesses or performing certain acts;where a legitimate exercise of the police power of the state,it has never been thought that this was a violation of anyconstitutional right as to person or property.”).


The cases that we have just discussed largely confirmStrickland’s understanding of the historical scope of the rightto bear arms openly in public. There are divisions betweenstate courts and even some disagreements within state courts. Moreover, we should repeat here that the cases represent alimited cross-section of the courts of the United States. Hereis what we can say. Only one state court (Kentucky, Bliss)has held that there is a constitutional right to carry armspublicly, whether concealed or openly. Outside of that onecase, the state courts generally agree that the legislature canprohibit the carrying of concealed weapons.37 Beyondconcealed carry, the courts diverge in their views. At leastthree state courts (Georgia, Nunn; Idaho, Brickey; Louisiana,Chandler, Jumel, Smith) have stated that the legislature canprohibit concealed carry, but suggested, in dicta, that it cannotprohibit open carry. At least five state courts have said thatthe legislature can prohibit the open carrying of firearms atleast to the extent that the regulations forbid open carrying incertain places (Alabama, Reid, Isaiah; Georgia, Hill); forbidmost open carrying of certain types of firearms or weapons(Arkansas, Fife, Haile; Tennessee, Andrews, Page; Texas,English, Duke), or forbid open carrying without a license onconditions set forth by the legislature (Georgia, Strickland). Our survey has yielded no firm consensus in Americancourts.

37 There are a number of cases we have not reviewed here that discussonly the question of concealed carry, without addressing, in a holding ordicta, the question of open carry. See, e.g., State v. Mitchell, 3 Blackf. 229(Ind. 1833); Wright v. Commonwealth, 77 Pa. 470 (1875); State v.Wilforth, 74 Mo. 528 (1881); State v. Speller, 86 N.C. 697 (1882); Statev. Workman, 35 W. Va. 367 (1891).


c. Treatises. Nineteenth-century American legal treatisesprovide some insight into the scope of the right to carry armsin public. Like the English commentators, Americancommentators drew a distinction between the carrying ofconcealable arms and military arms suitable for militiaservice. St. George Tucker discussed the English concept oftreason, which was levying war against the king. QuotingMatthew Hale, Tucker observed that an assembly, armed withweapons suitable for military service and “‘without the king’slicen[s]e, unless in some lawful and special cases, carries aterror with it, and a presumption of warlike force[.]’ The barecircumstance of having arms, therefore, of itself, creates apresumption of warlike force.” 5 St. George Tucker,Blackstone’s Commentaries app’x 19 (William Young Birch& Abraham Small eds. 1803) (quoting 1 Matthew Hale, TheHistory of the Pleas of the Crown 150 (1736)) (emphasisadded). Tucker then commented,

But ought that circumstance of itself, to createany such presumption in America, where theright to bear arms is recognized and secured inthe constitution itself? In many parts of theUnited States, a man no more thinks, of goingout of his house on any occasion, without hisrifle or musket in his hand, than an Europeanfine gentleman without his sword by his side.

Id. Where St. George Tucker addressed the SecondAmendment specifically, and stated that “[t]he right of selfdefence is the first law of nature,” it is clear from context thathe is principally concerned with the regulation of militaryarms, such as muskets, rifles, or shotguns, which wereprohibited for a time in England “under the specious pretextof preserving the game.” 1 St. George Tucker, Blackstone’s


Commentaries, at app’x 300. Joseph Story’s comments onthe Second Amendment bear a similar concern with deprivingthe people of arms, on the logic that bearing arms acted as “astrong moral check against the usurpation and arbitrary powerof rulers.” 3 Joseph Story, Commentaries on the Constitutionof the United States 746 (1833); see also William Rawle, AView of the Constitution of the United States of America at125 (1829) (“No clause in the Constitution could by any ruleof construction be conceived to give to congress a power todisarm the people.”).

Most nineteenth-century American authors assumed thatthe state had the right to regulate arms in the public square. William Rawle, for example, agreed with Blackstone’scriticism of governmental attempts to disarm the people in theguise of forest and game regulations. But he then drew a linebetween the use of firearms for hunting and their possessionin other public places:

This right ought not, however, in anygovernment, to be abused to the disturbanceof the public peace. . . . [E]ven the carrying ofarms abroad by a single individual, attendedwith circumstances giving just reason to fearthat he purposes to make an unlawful use ofthem, would be sufficient cause to require himto give surety of the peace. If he refused hewould be liable to imprisonment.

Id. at 126. Francis Wharton in his criminal law treatisequotes the Statute of Northampton and then comments:

A man cannot excuse wearing such armour inpublic, by alleging that such a one threatened


him, and that he wears it for the safety of hisperson against his assault; but it is clear thatno one incurs the penalty of the statute forassembling his neighbours and friends in hisown house, against those who threaten to dohim any violence therein, because a man’shouse is his castle.

Francis Wharton, A Treatise on the Criminal Law of theUnited States 932, § 2497 (1857) (citing 1 Hawkins, ATreatise of the Pleas of the Crown at 489). He adds “that thepublic and open exhibition of dangerous weapons by anarmed man, to the terror of good citizens, is a misdemeanorat common law.” Id. at 933 (footnote omitted). In hisdiscussion of the Second Amendment, Dean Pomeroyobserved that

a militia would be useless unless the citizenswere enabled to exercise themselves in the useof warlike weapons. . . . But all suchprovisions, all such guaranties, must beconstrued with reference to their intent anddesign. This constitutional inhibition iscertainly not violated by laws forbiddingpersons to carry dangerous or concealedweapons . . . .

John Norton Pomeroy, An Introduction to the ConstitutionalLaw of the United States 152–53 (1868). One of the mostinfluential commentators of the nineteenth century, ThomasCooley opined that “[t]he meaning of the provisionundoubtedly is, that the people, from whom the militia mustbe taken, shall have the right to keep and bear arms; and theyneed no permission or regulation of law for the purpose.”


Thomas M. Cooley, The General Principles of ConstitutionalLaw in the United States of America 271 (1880). At the sametime, Cooley suggested that “[t]he arms intended by theConstitution are such as are suitable for the general defenceof the community against invasion or oppression, and thesecret carrying of those suited merely to deadly individualencounters may be prohibited.” Id. at 271–72 (footnoteomitted). And one of the principal reporters of New York’spenal code and a prolific author, Benjamin Vaughan Abbott,offered this practical guide to the Second Amendment:

The Constitution secures the right of thepeople to keep and bear arms. No doubt, acitizen who keeps a gun or pistol underjudicious precautions, practises in safe placesthe use of it . . . exercises his individual right. No doubt, a person whose residence or dutiesinvolve peculiar peril may keep a pistol forprudent self-defence. But . . . carrying themcarelessly in the pocket; toying with them atpicnics, on board steamers, and in saloons. . . . These are practices upon which everygood citizen will frown, and which the law ofthe land is every year more explicitlydiscouraging.

Benjamin Vaughan Abbott, Judge and Jury 333 (1880). Abbott concludes: “Carrying [pistols] for defence, in themore settled parts of the land, savors of cowardice rather thanof prudence; a well-behaved man has less to fear fromviolence than from the blunders of himself and friends inmanaging the pistol he might carry as a protection.” Id.at 333–34.


One commentator distinguished between what the SecondAmendment prohibits Congress from doing and more generalconstitutional principles applicable to the states, and in thecourse of his discussion offered perhaps the strongestendorsement for the right to carry firearms openly in public. Distilling principles from some of the early Southern casesthat distinguished between concealed carry and open carry,Professor Ordronaux wrote:

[I]t was not necessary that the right to beararms should be granted in the Constitution, forit had always existed. It is not in consequencedependent upon that instrument, and is onlymentioned therein as a restriction upon thepower of the national government against anyattempt to infringe it. In other words, it is aright secured and not created. But thisprohibition is not upon the States, whosecitizens are left free in respect to the extent oftheir enjoyment or limitation of the right. Theword “arms” being used in its military sensealone, and as part of the equipment of acitizen in the public service, the provisiondoes not prevent a State from enacting lawsregulating the manner in which arms may becarried. Thus, the carrying of concealedweapons may be absolutely prohibitedwithout the infringement of any constitutionalright, while a statute forbidding the bearing ofarms openly would be such an infringement. In order to prevent breaches of the peace . . .a State may, as part of its police regulationsrequire that . . . a private citizen shall obtain a


license in order to be permitted to carry aconcealed weapon.

John Ordronaux, Constitutional Legislation in the UnitedStates 242–43 (1891) (footnotes omitted). Ordronaux did notexplain his reasoning, other than to drop a footnote withcitations to five cases we have discussed: a Georgia case,Nunn; three Louisiana cases, Chandler, Smith, and Jumel; anda Tennessee case, Andrews. At least Andrews is contrary toOrdronaux’s statement, because the Tennessee SupremeCourt upheld Andrew’s conviction for openly carrying. SeeAndrews, 50 Tenn. at 171, 186–87.

None of these commentaries, with the possible exceptionof Ordronaux, seriously questions the power of thegovernment to regulate the open carrying of arms in public. And several of them reinforce the Court’s holding in Heller,that there is a general right of self-defense in the home. Noone suggested that those two conclusions are inconsistentwith each other.

3. Twentieth-Century Restrictions

We are not inclined to review twentieth-centurydevelopments in detail, in part because they may be lessreliable as evidence of the original meaning of the Americanright to keep and bear arms. We will review some earlydevelopments to place Hawai‘i’s statutes in context.

The first part of the twentieth century saw a change inapproach in some states, as they adopted more detailedregulations, including licensing requirements. In 1906Massachusetts adopted “An Act to Regulate by License theCarrying of Concealed Weapons.” Although the title referred


to “concealed weapons,” the legislation in fact prohibitedcarrying “a loaded pistol or revolver, without authority orpermission, . . . or . . . any stiletto, dagger, dirk-knife, slung-shot or metallic knuckles.” 1906 Mass. Acts 150, ch. 172,§ 2. A license “to carry a loaded pistol or revolver” could beissued to an applicant who had “good reason to fear an injuryto his person or property” and was otherwise “suitable.” Id.at 150, § 1. Alabama prohibited persons from carrying a“pistol concealed,” but it also made it “unlawful for anyperson to carry a pistol about his person on premises not hisown or under his control.” 1909 Ala. Laws 258 No. 215,§§ 1–2. Hawai‘i adopted a similar provision: the territory’s1913 Act prohibited any person “not authorized by law” to“carry, or be found armed with any bowie-knife, sword-cane,pistol, air-gun, slung-shot, or other deadly weapon.” 1913Haw. Laws 25, § 3089.

Most of the laws we have examined lumped firearms intothe same category as knives, brass knuckles and similarweapons that could be concealed. In the early to mid-twentieth century, however, a number of states began todistinguish between firearms and other dangerous weaponsthat could be concealed. In 1911, New York adopted theSullivan Law, which made it unlawful to possess without alicense any pistol, revolver, or other firearm capable of beingconcealed. See Kachalsky, 701 F.3d at 84–85 (providingbackground). In 1913, New York amended the Sullivan Law“in relation to the carrying, use and sale of dangerousweapons.” 1913 N.Y. Laws 1627–30, vol. III, ch. 608, § 1. The legislature made it a felony to carry or possess “anyinstrument or weapon of the kind commonly known as ablackjack, slungshot, billy, sandclub, sandbag, metalknuckles, bludgeon, bomb or bombshell” and to carry orpossess “with intent to use the same unlawfully against


another . . . a dagger, dirk, dangerous knife, razor, stiletto, orany other dangerous or deadly instrument or weapon.” Id.at 1627–28. The legislature, however, separately prohibited“possession in any city, village or town of this state, anypistol, revolver or other firearm of a size which may beconcealed upon the person, without a written licensetherefor.” Id. at 1628. Openly carrying a concealableweapon was a misdemeanor; concealed carry was a felony. Id. New York’s judges were authorized to issue a license to“any householder, merchant, storekeeper or messenger of anybanking institution or express company” so long as the judgewas “satisfied of the good moral character of the applicant”and that the householder intended “to have such weapon inhis dwelling”; the “merchant, or storekeeper, to have suchweapon in his place of business”; and the banking messengerintended “to have and carry such weapon concealed while in[his] employ.” Id. at 1629. The law exempted lawenforcement officials and “duly authorized military or civilorganizations, when parading [and] . . . when going to andfrom the place of meeting of their respective organizations.” Id.

A number of other states followed New York’s model. In1923 California adopted “An act to control and regulate thepossession, sale and use of pistols, revolvers and otherfirearms capable of being concealed upon the person . . . .” 1923 Cal. Stat. 695, ch. 339. Like New York, and statesbefore it, California banned possession of dangerousweapons, including “the kind commonly known as ablackjack, slungshot, billy, sandclub, sandbag, or metalknuckles” and concealed dirks and daggers. Id. at 696, § 1. Separately, it banned felons and aliens from possessing “anypistol, revolver or other firearm capable of being concealedupon the person.” Id. at 696, § 2. Other persons were


prohibited from “carry[ing] concealed upon his person orwithin any vehicle . . . any pistol, revolver or other firearmcapable of being concealed” without a license. Id. at 697, § 5. The licensing requirement, however, did not apply to persons“owning, possessing or keeping within his place of residenceor place of business any pistol, revolver or other firearmcapable of being concealed upon the person.” Id. The act didnot apply to law enforcement officials, members of themilitary, persons at target ranges, and licensed hunters.

Other states followed New York and California, althougha number of them banned only concealed firearms. Astandard provision would prohibit any person from carrying“a pistol or revolver concealed in any vehicle or upon hisperson, except in his dwelling house or place of business,without a permit.” 1925 Ind. Acts 496, ch. 207, § 5. See1923 N.D. Laws 380 ch. 266, § 6. In 1926 the NationalConference of Commissioners on Uniform State Laws issuedthe Uniform Firearms Act, and a number of states adopted theUFA. See Note, The Uniform Firearms Act, 18 Va. L. Rev.887, 904 (1932). The UFA proposed licensing concealedfirearms. See, e.g., 1931 Pa. Laws 498, No. 158, § 5; 1935S.D. Sess. Laws 355, ch. 208, § 5; 1935 Wash. Sess. Laws599–60, ch. 172, § 5. The note in the Virginia Law Reviewpraised the UFA, while noting that “[t]he provisions of theAct contain little that is startling in the way of newlegislation. . . . [The Act] jealously guards the right of thehonest citizen to bear arms.” 18 Va. L. Rev. at 906.

Hawai‘i’s 1927 revisions tracked the UFA and becamethe basis for its current licensing scheme. In the 1927 Act,Hawai‘i provided that


no person shall carry, keep, possess or haveunder his control a pistol or revolver;provided, however, that any person who shalllawfully acquire the ownership or possessionof a pistol or revolver may, for purposes ofprotection and with or without a license, keepthe same in the dwelling house or businessoffice personally occupied by him, and in caseof an unlawful attack upon any person orproperty in said house or office, said pistol orrevolver may be carried in any lawful, hotpursuit of the assailant.

Act 206, 1927 Haw. Sess. Laws 209–10, § 5. A license “tocarry a pistol or revolver concealed upon his person or tocarry one elsewhere than in his home or office” could beissued if “the applicant has good reason to fear an injury tohis person or property . . . and . . . is a suitable person to be solicensed.” Id. at 210, § 7.

D. The Power to Regulate Arms in the Public Square

1. The Basic Rule

Our review of more than 700 years of English andAmerican legal history reveals a strong theme: governmenthas the power to regulate arms in the public square. Historyis messy and, as we anticipated, the record is not uniform, butthe overwhelming evidence from the states’ constitutions andstatutes, the cases, and the commentaries confirms that wehave never assumed that individuals have an unfettered rightto carry weapons in public spaces. Indeed, we can find nogeneral right to carry arms into the public square for self-defense. See Kachalsky, 701 F.3d at 96 (“[O]ur tradition . . .


clearly indicates a substantial role for state regulation of thecarrying of firearms in public.”). To be sure, any one-sentence declaration that we might make will be subject toqualifications and exceptions (which we will address in thenext section), but in the main, we have long distinguishedbetween an individual’s right of defense of his household andhis business and his right to carry a weapon in public for hisown defense, absent exceptional circumstances. “Like . . . theright secured by the Second Amendment,” the government’sright to regulate the carriage of weapons in public places “isnot unlimited.” Heller, 554 U.S. at 626. But we arepersuaded that government regulations on open carry are“[l]aws restricting conduct that can be traced back to thefounding era and are historically understood to fall outside ofthe Second Amendment’s scope,” and thus “may be upheldwithout further analysis.” Silvester, 843 F.3d at 821.

The contours of the government’s power to regulate armsin the public square is at least this: the government mayregulate, and even prohibit, in public places—includinggovernment buildings, churches, schools, and markets—theopen carrying of small arms capable of being concealed,whether they are carried concealed or openly. We need go nofurther than this, because the Hawai‘i firearms licensingscheme Young challenges only applies to “a pistol or revolverand ammunition therefor.” HRS § 134-9(a). This power toregulate is fully consonant with the Second Amendment rightrecognized in Heller. Heller found that the pre-existing rightto keep and bear arms is not a right to “carry any weaponwhatsoever in any manner whatsoever and for whateverpurpose.” 554 U.S. at 626. “‘[T]he central component’ ofthe Second Amendment” is the “basic right” of self-defense,whose exercise is “‘most acute’ in the home.” McDonald,561 U.S. at 767 (quoting Heller, 554 U.S. at 599, 628). The


heart of the Second Amendment is “defense of hearth andhome.” Heller, 554 U.S. at 635.

The power of the government to regulate carrying arms inthe public square does not infringe in any way on the right ofan individual to defend his home or business. In the Englishlegal tradition, “every man’s house is looked upon by the lawto be his castle.” 3 William Blackstone, Commentaries *288;see Semayne’s Case (1604), 77 Eng. Rep. 194, 194 (K.B.). See also Carpenter v. United States, 138 S. Ct. 2206, 2239(2018) (Thomas, J., dissenting). The principle was colorfullyexpressed by William Pitt in Parliament:

The poorest man may in his cottage biddefiance to all the forces of the Crown. Itmay be frail, its roof may shake; the wind mayblow through it; the storm may enter; the rainmay enter; but the King of England cannotenter—all his force dares not cross thethreshold of the ruined tenement!

See Miller v. United States, 357 U.S. 301, 307 (1958)(quoting William Pitt) (citation omitted). The principle wasfurther reinforced in the Bill of Rights, particularly by theThird and Fourth Amendments. See U.S. Const. amends. III(“No Soldier shall, in time of peace be quartered in anyhouse, without the consent of the Owner . . . .”), IV (“Theright of the people to be secure in their . . . houses . . . againstunreasonable searches and seizures, shall not be violated. . . .”); United States v. Craighead, 539 F.3d 1073, 1077 (9thCir. 2008) (“The home occupies a special place in thepantheon of constitutional rights.” (citing the First, Second,Third, and Fourth Amendments.)).


Defense of the public square stands on entirely differentfooting. “One of the first duties of government is to afford []protection.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163(1803). Indeed, among the fundamental privileges ofcitizenship in the United States is “[p]rotection by thegovernment.” Corfield v. Coryell, 6 F. Cas. 546, 551(C.C.E.D. Pa. 1823) (No. 3230). Protection is the quid proquo for our allegiance to the government. As Blackstoneexplained, “the community should guard the rights of eachindividual member, and . . . (in return for this protection) eachindividual should submit to the laws of the community;without which submission of all it was impossible thatprotection could be certainly extended to any.” 1 WilliamBlackstone, Commentaries at *47–48; see also Calvin’s Case(1609), 77 Eng. Rep. 377, 382 (K.B.) (Coke, J.) (stating that“the Sovereign is to govern and protect his subjects” and “thesubject oweth to the King his true and faithful ligeance”);English, 35 Tex. at 477 (“It is useless to talk about personalliberty being infringed by laws such as that underconsideration. The world has seen too much licentiousnesscloaked under the name of natural or personal liberty; naturaland personal liberty are exchanged, under the . . . socialcompact of states, for civil liberty.”). The king who cannotguarantee the security of his subjects—from threats internalor external—will not likely remain sovereign for long.

The distinction between hearth and home and the publicsquare is reinforced in the U.S. Constitution in another way: it is peculiarly the duty of the states to defend the publicsquare. We should observe at this juncture that the Americanlegal experience differed from the English tradition in twovery important respects—written constitutions andfederalism. Americans departed from their English forebearsby creating written constitutions. “English colonists in


America became used to writing their own documents to fleshout the particulars of their governments.” Donald S. Lutz,Colonial Origins of the American Constitution xx, xxi (1998). As a consequence, “[l]ocal government in colonial Americawas the seedbed of American constitutionalism.” Id. Thus,Chief Justice Marshall wrote, “in America, . . . writtenconstitutions have been viewed with so much reverence;”they were our “greatest improvement on politicalinstitutions.” Marbury, 5 U.S. (1 Cranch) at 178. The U.S.Constitution was written against a background of existingstate constitutions, charters, and laws; indeed, it borrowedgenerously from those constitutions. The U.S. Constitutiondid not displace such laws, U.S. Const. amend. X, exceptwhere it did so expressly, see, e.g., id. art. I, § 8, cls. 1–3; art.VI, cl. 2. Thus, as we are looking for the meaning of “theright of the people to keep and bear Arms”—which owed itsphrasing to the Massachusetts Constitution, Mass. Const. of1780, pt. 1, art. 17 (“The people have a right to keep and tobear arms . . . .”)—we should be looking to state constitutionsand practices for the best evidence of how Americans viewedtheir inherited right to bear arms.

That brings us to the other American innovation: American federalism contemplated distinct roles for thefederal government and the states, and it was the states thathad responsibility for maintaining the public peace. The U.S.Constitution declared at the outset that the federalgovernment would bear responsibility to “provide for thecommon defence.” U.S. Const. pmbl. (emphasis added). Toeffect that, the Constitution conferred on the United States thepower to raise and support armies and navies and imposed aduty to “protect [the states] against Invasion.” Id. art. I, § 8,cls. 12–13; art. IV, § 4. Correspondingly, the states wereforbidden to “keep Troops, or Ships of War,” or to “engage


in War unless actually invaded, or in such imminent Dangeras will not admit of delay.” Id. art. I, § 10, cl. 3. On the otherhand, the United States shared responsibility with the statesfor “promot[ing] the general Welfare,” and thus was grantedthe power to “lay and collect Taxes . . . to provide . . . for thegeneral Welfare of the United States.” Id. pmbl.; art. I, § 8,cl. 1. By contrast, the United States was not enjoined tosecure or provide “domestic Tranquility,” but only to“insure” it. Id. pmbl. Accordingly, the United States wasmade the “guarant[or] . . . against domestic Violence,” butonly “on Application of the Legislature, or of the Executive(when the Legislature cannot be convened).” Id. art. IV, § 4. That meant that the states had the primary responsibility forsecuring what was formerly known as “the king’s peace.” See 1 St. George Tucker, Blackstone’s Commentaries, atapp’x 367 (“[E]very pretext for intermeddling with thedomestic concerns of any state, under colour of protecting itagainst domestic violence is taken away, by that part of theprovision which renders an application from the legislative,or executive authority of the state endangered, necessary to bemade to the federal government, before it[]s interference canbe at all proper.”).

The states, in place of the king, assumed primaryresponsibility for maintaining the “king’s peace,”38 consistent

38 St. George Tucker explained that “[u]pon dissolution of the regalgovernment, all public offences became offences against that particularstate in which they were committed.” Accordingly, crimes in Virginiawere “alledged to be committed against the peace and dignity of thiscommonwealth.” 5 St. George Tucker, Blackstone’s Commentaries, atapp’x 20.


with their constitutions, laws, and traditions. As we haveseen, maintaining the “king’s peace” was the king’s duty and,in the English view, the carrying of weapons in public areaswas an affront to the king’s authority, for two reasons. First,public carry threatened the king’s peace because the merepresence of the weapons terrorized the people. Second, itsuggested that the king was unable or unwilling to protect thepeople. Carrying arms in the public square infringes onstates’ police powers for similar reasons. Thus, whether aman carried arms publicly as an open challenge to the king’speace, or did so as a vote of no confidence in the king’sability to maintain it, the Statute of Northampton was amongthe earliest efforts to assert formal authority over the publicsquare. And, in the English view, the Statute of Northamptondid not infringe any right to defend one’s castle, what theSupreme Court colloquially referred to in Heller as “hearthand home.” As Lord Coke explained, the Statute did notapply to the man who “assemble[s] force to defend his

The Supreme Court has further explained:

[W]hen the Constitution was written the term ‘breachof the peace’ did not mean, as it came to mean later, amisdemeanor such as disorderly conduct but had adifferent 18th century usage, since it derived frombreaching the King’s peace and thus embraced thewhole range of crimes at common law.

United States v. Brewster, 408 U.S. 501, 521 (1972). See U.S. Const. art.I, § 6, cl. 1 (granting Senators and Representatives privilege against arrestduring and traveling to and from legislative sessions “except [for]Treason, Felony and Breach of the Peace”); Williamson v. United States,207 U.S. 425, 446 (1908) (“[T]he term treason, felony and breach of thepeace, as used in the constitutional provision relied upon, excepts from theoperation of the privilege all criminal offenses” (internal quotation marksomitted)).


house.” Coke, The Third Part of the Institutes of the Laws ofEngland 161. Hearth and home and the public square wereseparate domains.

Even as the colonists broadly adopted the Statute ofNorthampton, they also adapted it, by enumerating the kindsof weapons that were banned. The lists vary from jurisdictionto jurisdiction, but what commonly appears on the lists aresmall, hand-held weapons, capable of being concealed,including pistols, revolvers, dirks, daggers, brass knuckles,and slung shots—which were, at the time of the colonies andearly statehood, considered deadly and dangerous weapons. Throughout the nineteenth century, American courtscontinued to question the usefulness of such weapons, seeAndrews, 50 Tenn. at 178; Page, 50 Tenn. at 201; Hill, 53 Ga.at 474–75; English, 35 Tex. at 476–77; Duke, 42 Tex.at 458–59; Haile, 38 Ark. at 565–66, characterizing them asgiven to “known public mischief,” Fife, 31 Ark. at 461. Although some states only prohibited concealed carry, manymore states banned the carrying of concealable weaponswhether actually concealed or not.

The states broadly adopted restrictions on possessingarms in the public square, and they did so even in the face ofthe states’ own constitutional provisions protecting the rightto keep and bear arms. Four states had constitutionalprotections for arms-bearing that pre-date the U.S.Constitution. N.C. Decl. of Rights of 1776, § 17; Pa. Decl. ofRights of 1776, cl. XIII; Vt. Const. of 1777, ch. I, art. 15;Mass. Const. of 1780, part. 1, art. 17. North Carolina,Pennsylvania and Vermont characterized it as the “right tobear arms” to defend themselves and the state. Massachusettscalled it the “right to keep and to bear arms for the commondefence.” Following independence and continuing to today,


forty-four of the fifty states have some kind of SecondAmendment analogue. Most of those provisions have somekind of clause referring to the militia or the need to keep themilitia under civilian control. Most of the provisions refer tothe right to defend self and state. A number of states spelledout that the right to keep and bear arms extended to defenseof self, family, and property. The Montana provision istypical: “The right of any person to keep or bear arms indefense of his own home, person, and property, or in aid ofthe civil power when thereto legally summoned, shall not becalled in question . . . .” Mont. Const. of 1889, art. III, § 13;see also Neb. Const. of 1988, art. I, § 1; N.H. Const. of 1982,pt. 1, art. 2-a; N.D. Const. of 1984, art. I, § 1; Okla. Const. of1907, art. II, § 26; Utah Const. of 1984, art. I, § 6; W. Va.Const. of 1986, art. III, § 22. Others added that the right tobear arms included a right to engage in hunting or otherrecreational use. See Neb. Const. of 1988, art. I, § 1; Nev.Const. of 1982, art. I, § 11(1); N.M. Const. of 1986, art. II,§ 6; N.D. Const. of 1984, art. I, § 1; W. Va. Const. of 1986,art. III, § 22. The states divided over the line between thelegislature’s power to regulate concealed carry and its powerto regulate the carrying of arms, concealed or open. Anumber of constitutions did not explain one way or the other,but nine state constitutions expressly referred to thelegislature’s power to regulate concealed carry. For example,the Louisiana Constitution provided that the right to keep andbear arms did “not prevent the passage of laws to punishthose who carry weapons concealed.” La. Const. of 1879, art.III, § 3; see also Colo. Const. of 1876, art. I, § 13; IdahoConst. of 1978, art. I, § 11; Ky. Const. of 1850, art. XIII,§ 25; Ky. Const. of 1891, art. II, § 1; Miss. Const. of 1890,art. III, § 12; Mo. Const. of 1875, art. II, § 17; Mont. Const.of 1889, art. III, § 13; N.M. Const. of 1911, art. II, § 6; N.M.Const. of 1971, art. II, § 6; N.C. Const. of 1876, art. I, § 24;


N.C. Const. of 1971, art. I, § 30; cf. La. Const. of 1974, art. I,§ 11 (removing any reference to the state’s authority toregulate concealed carry); Mo. Const. of 1945, art. I, § 23(same). Eight states recognized the legislature’s power toregulate the carrying of arms, without limiting the expresspower to concealed carry. Perhaps the most explicit of theseis the Oklahoma Constitution, which provides: “The right ofa citizen to keep and bear arms in defense of his home,person, or property, or in aid of the civil power, whenthereunto legally summoned, shall never be prohibited; butnothing herein contained shall prevent the Legislature fromregulating the carrying of weapons.” Okla. Const. of 1907,art. II, § 26; see also Fla. Const. of 1885, art. I, § 20; Fla.Const. of 1968, art. I, § 8; Ga. Const. of 1868, art. I, § 14; Ga.Const. of 1877, art. I, § 1, para. XXII; Idaho Const. of 1889,art. I, § 11; Ill. Const. of 1970, art. I, § 22; Tenn. Const. of1870, art. I, § 26; Tex. Const. of 1869, art. I, § 13; Tex.Const. of 1876, art. I, § 23; Utah Const. of 1895, art. I, § 6;Utah Const. of 1984, art. I, § 6.39

Although “the [Second] Amendment did not originallyapply to the States, . . . that does not make state practice

39 Even when a state constitution was silent on the power of thelegislature to regulate the carrying of weapons (openly or concealed), statecourts upheld the power of the legislature to regulate carrying. See, e.g.,Mitchell, 3 Blackf. at 229; Aymette, 21 Tenn. at 161–62; Buzzard, 4 Ark.at 28 (op. of Ringo, C.J.), 33 (op. of Dickinson, J.); Wright, 77 Pa. at 471;Blaksley, 83 P. at 620–21; Isaiah, 176 Ala. at 28. The Supreme Court ofArkansas, reviewing the cases and acknowledging that the ArkansasConstitution lacked an express conferral of legislative power, referred toan express provision in the Tennessee Constitution as “a matter ofsuperabundant caution, inserted to prevent a doubt, and that, unexpressed,it would result from the undefined police powers, inherent in allgovernments, and as essential to their existence as any of the munimentsof the bill of rights.” Haile, 38 Ark. at 567.


irrelevant in unearthing the Amendment’s original meaning.” Atwater v. City of Lago Vista, 532 U.S. 318, 338–39 (2001)(discussing the Fourth Amendment). We can, and should,look to “early state practice,” particularly where “[a] numberof state constitutional . . . provisions served as models for the. . . Amendment.” Id. at 339. Even after the adoption of theSecond Amendment, states continued to adopt constitutionalprovisions protecting the right to keep and bear arms,precisely because it was not clear that the SecondAmendment did bind them. And even as the states enshrineda right to bear arms in their fundamental documents, theycontinued to regulate the presence and use of arms in thepublic square. The states themselves saw no inconsistencybetween their citizens’ right to keep and bear arms and thestates’ duty to protect those citizens. When we look to thoseearly state practices, we must conclude that “history, if notunequivocal, has expressed a decided, majority view,” id. at345, and it is one that comes with “an impressive historicalpedigree,” United States v. Villamonte-Marquez, 462 U.S.579, 585 (1983), and that is sufficient.

It would be anomalous in the extreme if, having gone tothe trouble of spelling out the respective responsibilities ofthe new federal government and the states in 1789, theframers of the Bill of Rights undid that relationship with theSecond Amendment (adopted in 1791) by overruling existingstate constitutions and statutes. And the Court has assured usthat the Second Amendment did no such thing, but merelycodified a pre-existing right to keep and bear arms. Heller,554 U.S. at 599. For us, this powerfully suggests that theSecond Amendment should be read in light of stateconstitutions and laws roughly contemporaneous with theadoption of the Constitution; it should be seen as consistentwith pre-existing laws regarding the king’s peace, and not as


a novel federal check on those laws. Cf. Atwater, 532 U.S.at 336–37 (finding that the petitioner “has cited no particularevidence that those who framed and ratified the FourthAmendment sought to limit peace officers’ warrantlessmisdemeanor arrest authority” and citing “[t]he evidence ofactual practice . . . . [d]uring the period leading up to andsurrounding the framing of the Bill of Rights [by] colonialand state legislatures”).

2. The Exceptions

The American record is clear enough, but as we have said,it is not uniform. States adapted the Statute of Northamptonto fit their own needs. Although they did not agree on all theparticulars, they did agree that the state legislatures hadpower to regulate the carrying of arms in public. In thissection, we consider some of the general exceptions the statesmade to the no public carry rule to understand how it mightaffect any right to bear arms in the public square.

a. Classes of persons. The statutes exempted certainclasses of persons from the restrictions. For example, thestatutes are nearly unanimous in stating, so that there wouldbe no misunderstanding, that the restrictions on public carrydid not apply to law enforcement officials. As a nod to ourfederalism, the states generously made clear that their statutesalso did not regulate federal law enforcement officials fromcarrying. And the statutes exempt military personnel whenon duty and required by the military to be armed. Many ofthe statutes also took into account people who were travellingthrough the locale and, of necessity, were carrying theirbelongings, including firearms. More recent statutes makeclear that hunters and target shooters may carry their weapons


to and from the places where they may be lawfullydischarged.

b. Places. The statutes generally regulate carrying armsin public places such as fairs, markets, churches, and inplaces where the king’s ministers or agents might be found,which we accept as a primitive reference to governmentbuildings. We do have a couple of colonial examples where,by statute, persons were required to carry their weapons tosuch public places, most notably churches. We haveexplained that these early statutes were for the perceived needfor protection from outside groups, such as slaves and NativeAmericans. Although it might be argued that thisdemonstrates that early Americans had a right to carry theirfirearms, the statutes impose a duty to carry, which is quitedifferent. When the government imposes such a duty itassumes that it has the power to regulate the public carryingof weapons; whether it forbids them or commands them, thegovernment is regulating the practice of public carrying.

So far as we can tell from the historical record, none ofthe early statutes forbade the possession of such weapons inthe home. And more modern statutes sometimes allowindividuals to keep weapons in a place of business as well.

c. Licensing and good-cause requirements. Some of thefirst English provisions forbade the carrying of arms unlesslicensed by the king. We do not have much information onwhat criteria were used or how frequently such licenses wereissued. By the nineteenth century, some states authorized aform of licensure as an alternative to a ban on public carriage,although it was not a formal process such as we think oftoday. The 1836 Massachusetts statute, which served as amodel for many states, provided that any person who went


“armed with a dirk, dagger, sword, pistol, or other offensiveand dangerous weapon, without reasonable cause to fear anassault or other injury, or violence to his person, or to hisfamily or property,” was subject to surety (which we discussbelow). 1836 Mass. Acts 750, ch. 134, § 16 (emphasisadded). One way of reading this statute is that it gavepermission to people to carry concealable arms if they had“reasonable cause,” which the statute defined as fear ofassault, injury, or violence to themselves, their families, ortheir property. Unlike the modern practice, no advancepermission needed to be obtained.

The modern practice of formal licensing of firearmsappears to be a twentieth-century innovation. A number ofthe twentieth-century statutes granted a license to carry inpublic if the applicant had good cause, such as fear of injuryto himself or his property. Some states generally authorizedthe carrying of firearms in the home or at a place ofemployment but forbade persons to carry elsewhere unlessthey could demonstrate good cause. The influential 1913New York law allowed persons to carry a pistol, revolver, orother firearm to protect their home or business, but it requiredadvance application to a magistrate. 1913 N.Y. Laws 1629,vol. III, ch. 608, § 1.

d. Surety. Both English and American law allowed thepractice of surety as an alternative to a broad ban on opencarry. Massachusetts provides a typical example. The suretywas a form of “security to keep the peace, or . . . goodbehavior, or both.” 1836 Mass. Acts 750, ch. 134, § 1. It wasa form of prior restraint where “there [was] just cause to fearthat any such offence may be committed.” Id. § 3. If aperson was found with one of the enumerated weapons, orany other “offensive and dangerous weapon,” then “any


person having reasonable cause to fear an injury, or breach ofthe peace” could file a complaint. Id. § 16. Upon complaint,a magistrate could issue a warrant for the apprehension of theperson accused of threatening the peace. The accused wouldbe brought before the court where he could present hisdefense. If the person carrying the weapon did not have“reasonable cause” to fear for himself, his family, or hisproperty, then the magistrate could require the accused to post“sufficient sureties . . . to keep the peace towards all thepeople of this Commonwealth, and especially towards theperson requiring such security.” The surety was known as a“recognizance.” Id. §§ 3–4. Effectively, posting surety wassimilar to posting bail against one’s future conduct. If suretywas not posted, the person was imprisoned for the term forwhich the surety was to be posted, a term not to exceed sixmonths. Id. § 4. If the person violated his recognizance, thesurety was forfeited. Id. § 17.40

The surety provision allowed people against whom acomplaint had been made to carry in public, but only if theycould demonstrate good cause. The penalties for failing toshow good cause were severe—including fines andimprisonment. Moreover, the law allowed “any person” whofeared “injury, or breach of the peace” to file a complaint. Id. § 16 (emphasis added). Filing a complaint did not requireproof that the person carrying was a threat to the complainant;it was sufficient for the complainant to show that there was a

40 The Massachusetts law contemplated both sureties of the peace andsureties for good behavior, a practice with deep roots in English law. Seesupra note 12 (explaining the forms of surety). Section 16 required thata person accused of being a threat to the peace in the future “find suretiesfor keeping the peace.” Section 18 referenced “[a]ny surety in arecognizance to keep the peace, or for good behavior . . . .” 1836 Mass.Acts 750, ch. 134, §§ 16, 18 (emphasis added).


threat to the peace—a standard that harkened to the Statute ofNorthampton. The possibility of having to respond to such acomplaint, much less having to post surety, appears to havebeen a severe constraint on anyone thinking of carrying aweapon in public.

We thus vigorously disagree with the D.C. Circuit’sconclusion that “[u]nder surety laws, put simply, everyonestarted out with robust carrying rights.” Wrenn, 864 F.3dat 661. This conclusion simply ignores the plainest ofreadings of English and American laws. The English practiceof surety of the peace, which carried over to the states, was asubstantive restraint on anyone who was the subject of acomplaint for openly carrying arms or other dangerousweapons. The surety laws permitted courts to impose a bondrequirement on people who had not actually violated anylaws, but might do so in the future. Surety was a means ofkeeping the peace in areas lacking a centralized police force. See supra note 12. No one would describe such regulationsas “‘akin to modern penalties for minor public-safetyinfractions like speeding or jaywalking,’ which makes them. . . poor evidence of limits on the [Second] Amendment’sscope.” Id. (quoting Heller, 554 U.S. at 633).41 The historyof sureties shows that carrying arms in public was not treatedas a fundamental right.

* * *

None of the longstanding exceptions for certain types ofpublic carry diminishes in any significant way the

41 We note that the Court in Heller was not referring to suretyprovisions, but to provisions dealing with discharging weapons. 554 U.S.at 632–34.


government’s power to regulate the carrying of arms in publicplaces. The fact that we have recognized the need for lawenforcement officials and military personnel to carryweapons; that we have understood the right of self-defense inour businesses; that we have made accommodations to realityby allowing persons in transit to cross public areas with theirarms; that we have granted limited license to people to carryin the public square; and that we have, at times, employedsureties as an alternative to an outright ban on open carrydoes not detract in any way from the fundamental point thatfor centuries we have accepted that, in order to maintain thepublic peace, the government must have the power todetermine whether and how arms may be carried in publicplaces. There is no right to carry arms openly in public; noris any such right within the scope of the Second Amendment. Cf. Kachalsky, 701 F.3d at 96 (“[S]tate regulation of the useof firearms in public was ‘enshrined with[in] the scope’ of theSecond Amendment when it was adopted.” (alteration inoriginal) (quoting Heller, 554 U.S. at 634)).

We recognize that, although there have been fewtechnological advances in the last centuries in dirks, daggers,slung shots, and brass knuckles, there clearly have beenadvances in the manufacture of pistols and revolvers. Hellerobserved that today the handgun is “an entire class of ‘arms’that is overwhelmingly chosen by American society for . . .[a] lawful purpose.” Heller, 554 U.S. at 628. Notwithstanding the advances in handgun technology, andtheir increasing popularity, pistols and revolvers remainamong the class of deadly weapons that are easily transportedand concealed. That they may be used for defense does notchange their threat to the “king’s peace.” It remains as truetoday as it was centuries ago, that the mere presence of suchweapons presents a terror to the public and that widespread


carrying of handguns would strongly suggest that state andlocal governments have lost control of our public areas. Technology has not altered those very humanunderstandings.42

We may, of course, change our conception of what weneed to do to protect ourselves. The Constitution does notimpose the Statute of Northampton on the states. But theSecond Amendment did not contradict the fundamentalprinciple that the government assumes primary responsibilityfor defending persons who enter our public spaces. Thestates do not violate the Second Amendment by assertingtheir longstanding English and American rights to prohibitcertain weapons from entering those public spaces as meansof providing “domestic Tranquility” and forestalling“domestic Violence.” U.S. Const. pmbl.; U.S. Const. art. IV,§ 4. Any change we wish to make in our allocation ofresponsibility between ourselves and our governments maybe had through ordinary legislation, amendment to stateconstitutions, or amendment to the U.S. Constitution.

E. Response to the Dissent

Before we apply our conclusion to the Hawai‘i statute, wehave several general observations to make on the views of ourdissenting colleagues. We have tried to address all relevantmaterials—statutes, cases, and treatises—and we havelabored to make sense of the whole record. We have

42 Even if we were disposed to declare pistols and revolvers necessaryfor our own self-defense in public places, we see no reasonable stoppingpoint at firearms. See Strickland, 72 S.E. at 263. If pistols and revolversare useful for self-defense, so are dirks and daggers and “other dangerousand unusual weapons” such as Samurai swords or a trident and net.


recognized that the materials do not always agree in all theparticulars, but we have worked to distill the central meaningfrom the record. The dissent, however, reviews a much morelimited historical record. Where we referred to stateconstitutions as evidence of the meaning of the SecondAmendment, the dissent finds them “entirely irrelevant” tothe question presented in this case. O’Scannlain Dissentat 147. Where we worked through the history of legislationin the colonies, states, and territories—covering a variety ofregulations from some thirty-one separate jurisdictions—thedissent dismisses the legislation as “regulation at its edges,”id. at 132, from a “smattering of nineteenth-century gunregulations,” id. at 160.43 When we point out that three U.S.

43 The history of legislation the dissent does cite is the post-Civil Warhistory of the Black Codes. See O’Scannlain Dissent at 150–53. We donot disagree with the history the dissent recounts, but it is not clear howthat history informs the issue before us. The Black Codes, for example,forbade black Americans (and others) from keeping arms. See id. at 150n.8 (citing examples). The congressional reaction to these codes was theCivil Rights Act of 1866. That Act provided that all citizens, withoutregard to prior condition of slavery, would have “the same right . . . tomake and enforce contracts, to sue, be parties, and give evidence, toinherit, purchase, lease, sell, hold, and convey real and personal property,and to full and equal benefit of all laws and proceedings for the securityof person and property, as is enjoyed by white citizens . . . .” Act of Apr.9, 1866, ch. 31, § 1, 14 Stat. 27. Concerned that the Act might be beyondCongress’s powers, Congress proposed a new amendment, which becameour Fourteenth Amendment. As he introduced the proposed amendment,Representative Thaddeus Stevens explained that it would guarantee that

whatever law punishes a white man for a crime shallpunish the black man precisely in the same way and tothe same degree. Whatever law protects the white manshall afford “equal” protection to the black man. Whatever means of redress is afforded to one shall beafforded to all. Whatever law allows the white man to


territories, which were bound by the Second Amendment andwhose own constitutions had to be approved by Congress,had firearms restrictions similar to those of the states, thedissent answers that they are “isolated, territorial statutes,” id.at 169, from Western regions where “life on the frontiermight have motivated territorial legislatures to undertakemore severe measures against the use of weapons” than inother states, id. at 165–66. Where we carefully analyzed thefull range of views expressed in the nineteenth-century statecases, the dissent begins with the cases that favor its view, id.at 138–44, and discards the remaining cases as “carry[ing] nointerpretive weight after Heller,” id. at 144. See id. at 144–49(discussing and dismissing other state cases). Where we citedto all the treatises that were relevant to the parties, the dissentonly relies on the treatises that agree with its bottom line. Id.at 135–38, 155–56, 164–65. Having dispensed with most ofthe resources available to us, it is of no surprise that thedissent concludes that “[t]he important Founding-eratreatises, the probative nineteenth-century case law, and thepost-Civil War legislative scene all reveal a single Americanvoice.” Id. at 153 (emphasis added).

testify in court shall allow the man of color to do thesame.

Cong. Globe, 39th Cong., 1st Sess. 2459 (1866).

As equality provisions, the Privileges or Immunities Clause and theEqual Protection Clause of the Fourteenth Amendment guaranteed that allcitizens would enjoy the same rights as “white citizens,” including SecondAmendment rights. But those provisions do not tell us anything about thesubstance of the Second Amendment, any more than an equal right toenter into contracts or inherit property tells us whether the state may alterthe Statute of Frauds or the Rule Against Perpetuities, so long as it doesso for all citizens.


The dissent’s conclusion is, with respect, a modest thesis. And, more importantly, it is not history. We acknowledgedfrom the very beginning that the historical record was mixedand that we were going to have to work through it—all ofit—to discern the long-term trends. The dissent has picked itsfriends and come to a fore-ordained conclusion that its friendshave spoken with a “single American voice.” We deal belowwith some of the dissent’s reasons for dismissing theevidence laid out before us, but one important point needs tobe made here. The dissent dismisses out of hand manynineteenth-century sources as irrelevant because they “carr[y]no interpretive weight after Heller.” Id. at 144. See also id.at 145–47, 163–65. Indeed, in the end, examining anyevidence beyond that supporting the dissent “is foreclosed byHeller.” Id. at 174. We do not believe that Heller hasdecided the issue presented to us in this case, nor do webelieve that Heller has foreclosed our examination of thehistorical record. But we, and the dissent, should be clear: IfHeller has answered these questions then there is no reasonto review the historical record. In the end the dissent’s viewis not that our understanding of the history is wrong, but thathistory is now beside the point because Heller has reached adifferent conclusion. But that is an argument based onHeller, not an argument based on the historical evidence, andwe ought not to pretend that selective citation of historicalsources is itself good history.

We are thus content, in the main, to rest on our review ofthe historical record. There are a couple of points we shouldaddress. We will start with the relevance of legislation asevidence of the scope of a constitutional right. The dissentsimply elides the substantial history of colonial, state, andterritorial restrictions on the possession of firearms in thepublic square, most of it derived from the Statute of


Northampton and related English practices. For the dissent,“the existence of historical regulations” is of little value, fortwo reasons: (1) “the majority offers no enforcement history”and (2) those regulations “largely evaded constitutionalscrutiny.” Id. at 160; see also id. at 166 (“[O]ne can learnlittle about the general understanding of the SecondAmendment from such isolated statutes, which were enactedso distant from the Founding and for which we have norecord of enforcement.”). The question of whether thesestatutes were actually enforced is a fair one. There are manystatutes on the books of American jurisdictions that havenever been enforced or, having once been enforced, havefallen into desuetude. There are several things in the recordthat make us think that these statutes were not merelysymbolic. The statutes adopted by the states owed much totheir English antecedents. Whatever deference the coloniststhought they owed to England was severed in the Revolution. Yet, shortly after the adoption of the Second Amendment, thestates adopted statutes similar to the Statute of Northampton. And the states, acting independently, copied statutes fromeach other. And such statutes were updated and altered asnecessary. That strongly suggests that the states felt the needfor such legislation. How tightly each state or jurisdictionwithin a state decided to enforce the statute is beyond thematerials that we have seen. But even if a statute was notenforced, or was loosely enforced, the fact of the statute aloneis some evidence that the state legislature believed that it waswithin its power to adopt the legislation. The sheer breadthof firearms legislation in the United States suggests that itsconstitutionality was broadly accepted. Moreover, thehandful of cases we do have from various courts, based onfairly mundane facts, proves that the statutes were enforced.


Nevertheless, the dissent correctly points out that thereare a relatively small number of state cases—largely from theSouth—testing the constitutionality of such statutes. Thereare several things that may explain this. Since Marbury v.Madison, we have come to accept the primacy of thejudiciary in deciding the constitutionality of legislative acts. As twenty-first century Americans we believe that allconstitutional questions not only will, but must, be resolvedin the courts. Thus, we may be forgiven for believing that, ifthese statutes were enforced, there would be more reportedappellate decisions. From this the dissent would have usconclude that the statutes were simply not enforced. But, onthe other hand, our twenty-first century assumptions may nothave been true of the nineteenth century. At least in the U.S.Supreme Court, the routine exercise of the Marbury power islargely a post-Civil War development. Until 1865, the Courtstruck down exactly two federal statutes, one in Marbury andone in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Whether there was a similar reluctance on the part of statesupreme courts to address such questions, whether statecourts routinely accepted the constitutionality of the statutes,or whether the statutes were sparingly enforced andchallenged in court is not apparent, but it is clear that as anation we became much more constitutionally litigious afterthe Civil War. See Heller, 554 U.S. at 625–26 (commentingon a number of “significant matter[s]” that have “been for solong judicially unresolved”). Without some basis forrejecting the extensive history of legislation, we are not freeto ignore it. It is the best evidence we have of the Americanunderstanding of the interface between the right to keep andbear arms and the police power over the public square.

The scholarly commentary offers additional explanation. Military historian Patrick Charles points out that prior to the


Civil War, the states divided along sectional lines over howto regulate arms, with Northern and Western states followingwhat has been called the “Massachusetts Model.” Heobserves, consistent with the dissent’s point, that “theconstitutionality of the Massachusetts Model was neversufficiently called into question.” Patrick J. Charles, Armedin America: A History of Gun Rights from Colonial Militiasto Concealed Carry 143 (2018) (footnote omitted). Hesuggests three reasons why that is so. First, “Northerners, byand large, detested the practice of going habitually armed,”and therefore accepted the legitimacy of this exercise ofpolice power. Id. Second, even under the MassachusettsModel, individuals could “carry weapons for self-defense solong as they could show a pressing or imminent threat.” Id.at 144. And third, “Northerners viewed the right to self-defense as a right of the last resort”; they simply did not feelthe need to carry as often as their Southern counterparts, who“embrace[d] notions of vengeance and honor.” Id. at 145. Inthe South, the states “differentiate[d] between the open andconcealed carriage of arms. While open carriage was moreoften than not legally condoned, concealed carriage wasprohibited.” Id.

Even accepting the relatively small number of reportedcases, we have an additional concern with the dissent’srejection of roughly half of the state cases that did address theconstitutionality of firearms regulations. CompareO’Scannlain Dissent at 138–43 (citing with approval casesfrom Kentucky, Tennessee, Alabama, Georgia, andLouisiana), with id. at 144–49 (rejecting cases from Arkansas,Georgia, Texas, West Virginia, and Oklahoma).44 Once the

44 We have addressed all of these cases in Part III.C.2.b and will notrepeat our discussion here.


dissent dismisses all the state cases that disagreed with itsconclusion, it confidently concludes that “the majority has notcited a single apposite case in which any nineteenth-centurycourt held to the contrary.” Id. at 149. The trick, of course,is the word “apposite.” The dissent rejects decisions fromfour states, Arkansas, Georgia, Texas, and West Virginiabecause “each decision was explicitly premised on a militia-focused view of the right to bear arms.” Id. at 145. According to the dissent, Heller rejected a militia-basedreading of the Second Amendment, and each of these cases“rests on the untenable militia-based view of the right.” Id.at 144. The dissent has overstated its case. In Heller, theCourt rejected the view that the Second Amendment’sprefatory clause—“A well regulated Militia, being necessaryto the security of a free State”—was “the central componentof the right,” that is, that one might possess arms only indefense of the state. Heller, 554 U.S. at 599 (emphasisomitted); see id. at 577 (“Petitioners and today’s dissentingJustices believe that [the Second Amendment] protects onlythe right to possess and carry a firearm in connection withmilitia service.”). Rather, the Court held that the “entirelysensible” reading was that the Second Amendment prevented“the threat that the new Federal Government would destroythe citizens’ militia by taking away their arms.” Id. at 599;see id. at 598 (“During the 1788 ratification debates, the fearthat the Federal Government would disarm the people inorder to impose rule through a standing army or select militiawas pervasive in Antifederalist rhetoric.”).

There is nothing in the state cases that the dissent rejectsand, therefore, ignores that is inconsistent with Heller’sconclusion that the Second Amendment protects an individualright. None of those state decisions took the positiondisapproved by the Supreme Court in Heller. What they did


was refer to arms useful in service in the militia as way ofdistinguishing between constitutional regulations (smallweapons traditionally prohibited under English and Americanlaw and not useful in military service) and a right to keep andbear arms that could be exercised in defense of self and state. See id. at 602 (referring to state constitutions that “referred tothe right of the people to ‘bear arms in defence of themselvesand the State’”). The dissent’s own quotations from the casesit rejects demonstrates the state courts’ concerns. SeeO’Scannlain Dissent at 144–47. None of those cases couldreasonably be read to support the ban of all weapons exceptwhen actually used in militia service, which was the theoryHeller rejected. The militia clause helps us understand thecontours of the Second Amendment. After Heller, theprefatory clause may not dictate the content of SecondAmendment rights, but neither is it irrelevant to it.

Finally, the dissent’s treatment of the state cases that donot agree with its conclusion reinforces the dissent’s Hellerproblem. If the Second Amendment codifies an “existingright,” we have to look to some source for the right. Andunless we are willing to say that it is a natural right withoutreference to English or American practice, we have to lookat all of the materials. The dissent can only get to itsconclusion by rejecting the English practice, the entire historyof American legislation, half of the state cases, and at leasthalf of the scholarly commentary. That is not much of a “pre-existing right” if all the state legislatures and half of statesupreme courts got it wrong. The dissent’s argument thuscontains the seeds of its own destruction, because if thedissent is correct that much of our history is, at best,irrelevant, but more likely just wrong, then perhaps there isno such pre-existing right. In which case, under the dissent’sown reasoning, Heller is wrong. We are not willing to follow


the dissent down that road. Either Heller has decided thisquestion, in which case there is no need for further historicalinquiry, or we need to examine the entire historical recordwith care.

F. Application to HRS § 134-9

Hawai‘i’s licensing scheme stands well within ourtraditions. Section 134-9 requires a license to carry a pistolor revolver, concealed or unconcealed. Consistent withEnglish and American legal history, Hawai‘i exempts from itsfirearms regulation scheme police officers, certain personsemployed by the state, and members of the armed forces“while in the performance of their respective duties.” HRS§ 134-11(a). It permits hunters and target shooters to carryopenly and to transport their arms. Id. § 134-5. It recognizesthe right of persons to arm themselves in their “place ofbusiness, residence, or sojourn” and transport unloaded armsbetween those locales. Id. § 134-23. Persons who have“reason to fear injury to . . . person or property” may applyfor a license to carry a pistol or revolver concealed and,“[w]here the urgency or the need has been sufficientlyindicated” and the applicant is “engaged in the protection oflife and property,” to carry a pistol or revolver openly. Id.§ 134-9(a).45

Hawai‘i’s restrictions have deep roots in the Statute ofNorthampton and subsequent English and American

45 Subject to the permissions outlined in § 134-5 and to otherenumerated exceptions, Hawai‘i also prohibits the public carry of loadedor unloaded firearms other than a pistol or revolver. HRS §§ 134-23, 134-24. The state further prohibits the possession of automatic firearms,certain types of rifles and shotguns, and most assault pistols. Id. § 134-8.


emendations, and do not infringe what the Court called the“historical understanding of the scope of the right.” Heller,554 U.S. at 625. Those restrictions are within the state’slegitimate police powers and are not within the scope of theright protected by Second Amendment. That means thatYoung’s challenge to Hawai‘i’s restrictions fails at step oneof our framework and “may be upheld without furtheranalysis.” Silvester, 843 F.3d at 821. We easily concludethat HRS § 134-9 is facially consistent with the SecondAmendment.

IV. OTHER CLAIMS

In addition to Young’s primary Second Amendmentclaim, he brings two other claims against HRS § 134-9. First,borrowing the doctrine of prior restraint from the FirstAmendment, Young argues that the chief of police’sdiscretionary authority to deny carry-permit applicationsviolated his Second Amendment right. He argues that § 134-9 is invalid because it vests chiefs of police “with unbridleddiscretion to determine whether a permit is issued,” whichimposes on his right to carry a firearm in public. Theapplication of the prior restraint doctrine to a SecondAmendment challenge hinges on Young’s assumption that theright to keep and bear arms is similar enough to the right tofree speech that preemptive firearm-licensing requirementsare also presumptively invalid. Second, Young brings a dueprocess challenge to the Hawai‘i statute. He claims that§ 134-9 lacks a mechanism for appealing a chief of police’sdenial of a carry application, and that due process requiressome form of hearing. See Mathews v. Eldridge, 424 U.S.319 (1976). Assuming that Young has a liberty or propertyinterest in obtaining a license to carry a firearm, it is not clearthat Hawai‘i does not provide him with the process he seeks.


Young did not attempt to exhaust his remedies beforebringing this suit. We do not find either of these argumentspersuasive.

A. Prior Restraint

We start with Young’s prior restraint claim. A “priorrestraint” is any law or judicial order that preemptivelyforbids certain speech before the speech occurs. Alexanderv. United States, 509 U.S. 544, 550 (1993); In re Nat’l Sec.Letter, 863 F.3d 1110, 1127 (9th Cir. 2017). Theserestrictions generally break down into two classes: “censorship schemes and licensing schemes.” In re Nat’l Sec.Letter, 863 F.3d at 1127. In the First Amendment context,the threat of preemptive censorship by a governing body isapparent enough in prior restraints to render such restrictionspresumptively invalid. Bantam Books, Inc. v. Sullivan, 372U.S. 58, 70 (1963). So, although a prior restraint is notunconstitutional per se, it “bear[s] a heavy presumptionagainst its constitutional validity.” Id. This makes sense inthe speech context, given that “a free society prefers to punishthe few who abuse rights of speech after they break the lawthan to throttle them and all others beforehand,” which is “atheory deeply etched in our law.” Se. Promotions, Ltd. v.Conrad, 420 U.S. 546, 559 (1975).

On the surface, it is easy to see why Second Amendmentchallenges to licensing schemes so often invoke FirstAmendment jurisprudence. See, e.g., Heller, 554 U.S. at 582(finding that the Second Amendment extends to modernfirearms just as the First Amendment extends to “modernforms of communication”); Jackson, 746 F.3d at 961(concluding that in the context of step two of Heller, “we arelikewise guided by First Amendment principles”); see also


Binderup v. Att’y Gen., 836 F.3d 336, 344 (3d Cir. 2016) (enbanc) (finding that restrictions on Second Amendment rightsare “subject to scrutiny in much the way that burdens on FirstAmendment rights are”); Ezell v. City of Chicago, 651 F.3d684, 706–07 (7th Cir. 2011) (recognizing that courts haveadopted First Amendment principles of scrutiny in SecondAmendment cases). After all, the Bill of Rights explicitlyprotects both the freedom of speech and the right to keep andbear arms.

But when we look beneath the surface, the analogy to theprior restraint doctrine quickly falls apart. See Pena v.Lindley, 898 F.3d 969, 1008–09 (9th Cir. 2018) (Bybee, J.,concurring in part and dissenting in part) (“The analogy to theFirst Amendment begins to break down, however, once wemove beyond rules of general applicability.”); United Statesv. Marzzarella, 614 F.3d 85, 96 n.15 (3d Cir. 2010) (“Whilewe recognize the First Amendment is a useful tool ininterpreting the Second Amendment, we are also cognizantthat the precise standards of scrutiny and how they apply maydiffer under the Second Amendment.”). To start, althoughthe Bill of Rights protects both speech and the right to keepand bear arms, there are “salient differences between thestate’s ability to regulate” First and Second Amendmentrights. Kachalsky, 701 F.3d at 92. Most notably, the inherentrisk that firearms pose to the public distinguishes theirregulation from that of other fundamental rights. See Bonidyv. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015). Additionally, while everyone enjoys the right to speak, evenunder the most generous reading of the Second Amendment,not everyone enjoys the right to carry a firearm in public. SeeHeller, 554 U.S. at 626–27; Berron v. Ill. Concealed CarryLicensing Rev. Bd., 825 F.3d 843, 847 (7th Cir. 2016). Where the public square is concerned, states have always


enjoyed broader authority to regulate firearms than speech. For these reasons, we think it “imprudent to assume that theprinciples and doctrines developed in connection with theFirst Amendment apply equally to the Second . . . .” Kachalsky, 701 F.3d at 92.

We are not alone in concluding that the prior restraintdoctrine does not apply in the Second Amendment context. So far as we can tell, every court to address the question hasdeclined to apply the prior restraint doctrine to firearm-licensing laws. See id. at 91–92; Hightower v. City of Boston,693 F.3d 61, 80–81 (1st Cir. 2012); Drake, 724 F.3d at 435;Woollard, 712 F.3d at 883 n.11; United States v. Focia, 869F.3d 1269, 1283–84 (11th Cir. 2017). We, therefore, join oursister circuits in holding that the prior restraint doctrine doesnot apply to Second Amendment challenges involvingfirearm-licensing laws.

B. Procedural Challenge

Young’s due process argument fares no better. He claimsthat HRS § 134-9 does not provide adequate process tochallenge the denial of his carry-permit application.

Young’s procedural challenge is premature. Youngclaims that he was deprived of due process because HRS§ 134-9 does not provide a mechanism for review of a chiefof police’s denial of a permit application. It is not clear thatYoung is correct. Hawai‘i’s administrative procedure actaffords “all parties . . . an opportunity for hearing” in any“contested case.” HRS § 91-9. A “contested case” is any“proceeding in which the legal rights, duties, or privileges ofspecific parties are required by law to be determined after anopportunity for agency hearing.” HRS § 91-1. Following


such a hearing, “[a]ny person aggrieved by a final decisionand order in a contested case . . . is entitled to judicialreview.” HRS § 91-14(a). It is not clear to us whether thedenial of an open-carry application would fall under § 91-9’sumbrella. But it is clear that Young did not pursue a hearingunder § 91-9 and did not seek judicial review as provided by§ 91-14 prior to bringing suit in federal court. Young’s claimthat § 134-9 lacks an opportunity for appellate review isbased on his own speculation.

A claim that “rests upon contingent future events that maynot occur as anticipated, or indeed may not occur at all” is notripe for review. Texas v. United States, 523 U.S. 296, 300(1998) (internal quotation marks omitted); Wolfson v.Brammer, 616 F.3d 1045, 1064 (9th Cir. 2010). Young didnot seek review under § 91-9 before bringing suit. So,Hawai‘i has not yet denied him the opportunity for appellatereview. Because Young has not actually been denied ahearing, his procedural due process claim is speculative, andwe need not reach it. Ass’n of Am. Med. Colls. v. UnitedStates, 217 F.3d 770, 779 (9th Cir. 2000) (citing Abbott Labs.v. Gardner, 387 U.S. 136, 148 (1967), abrogated on othergrounds by Califano v. Sanders, 430 U.S. 99 (1977)).

V. CONCLUSION

The judgment of the district court is AFFIRMED.


O’SCANNLAIN, Circuit Judge, with whom CALLAHAN,IKUTA, and R. NELSON, Circuit Judges, join, dissenting:

The Second Amendment to the United States Constitutionguarantees “the right of the people to keep and bear Arms.”U.S. Const. amend. II (emphasis added). Today, a majority ofour court has decided that the Second Amendment does notmean what it says. Instead, the majority holds that while theSecond Amendment may guarantee the right to keep a firearmfor self-defense within one’s home, it provides no rightwhatsoever to bear—i.e., to carry—that same firearm for self-defense in any other place.

This holding is as unprecedented as it is extreme. Whileour sister circuits have grappled with—and disagreedover—the question of whether public firearms carry fallswithin the inner “core” of the Second Amendment, we nowbecome the first and only court of appeals to hold that publiccarry falls entirely outside the scope of the Amendment’sprotections.

In so holding, the majority reduces the right to “bearArms” to a mere inkblot. The majority’s decision underminesnot only the Constitution’s text, but also half a millennium ofAnglo-American legal history, the Supreme Court’s decisionsin District of Columbia v. Heller, 554 U.S. 570 (2008), andMcDonald v. City of Chicago, 561 U.S. 742 (2010), and thefoundational principles of American popular sovereigntyitself.

I respectfully dissent.


I

A

George Young wishes to carry a handgun publicly forself-defense in the State of Hawaii. Twice in 2011, he appliedfor a license to carry a handgun, either openly or concealed.His application was denied each time by the County ofHawaii’s Chief of Police because Young failed to satisfy therequirements set forth in section 134-9 of the Hawaii RevisedStatutes (“H.R.S.”).

Section 134-9 acts as a limited exception to the State ofHawaii’s “Place[s] to Keep” statutes, which generally requirethat gun owners keep their firearms at their “place ofbusiness, residence, or sojourn.” H.R.S. §§ 134-23 to -27. Theexception allows citizens to obtain a license to carry a loadedhandgun in public under certain circumstances. Id. § 134-9(a). For concealed carry, section 134-9 provides that “[i]n anexceptional case, when an applicant shows reason to fearinjury to the applicant’s person or property, the chief ofpolice of the appropriate county may grant a license to anapplicant . . . to carry a pistol or revolver and ammunitiontherefor concealed on the person.” Id. For open carry, thechief of police may grant a license only “[w]here the urgencyor the need has been sufficiently indicated” and the applicant“is engaged in the protection of life and property.” Id.

These baseline requirements limit who “may” be eligibleto obtain a public-carry license but leave each county withdiscretion to impose even tighter restrictions. The County ofHawaii, where Young lives, has done just that. When itpromulgated regulations implementing section 134-9, HawaiiCounty created an open-carry licensing regime that is


available only to “private detectives and security guards.”Police Dep’t of Cnty. of Haw., Rules and RegulationsGoverning the Issuance of Licenses to Carry Concealed andUnconcealed Weapons 1 (Oct. 22, 1997). Moreover, thecounty regulation allows open carry “only” when the licenseholder is “in the actual performance of his duties or within thearea of his assignment.” Id. at 10. Thus, for any person whois not an on-duty security guard, the only opportunity to carrya firearm for self-defense is via concealed carry. And eventhen, a citizen must demonstrate “an exceptional case” just tobe considered eligible for a concealed-carry permit. H.R.S.§ 134-9(a).

Absent a license under section 134-9, a person may onlytransport an unloaded firearm, in an enclosed container, toand from a place of repair, a target range, a licensed dealer,a firearms exhibit, a hunting ground, or a police station, id.§§ 134-23 to -27, and may use those firearms only while“actually engaged” in hunting or target shooting, id. § 134-5(a), (c).

B

On June 12, 2012, Young filed this pro se civil-rightsaction against the State of Hawaii, its Governor, and itsAttorney General (collectively, “the State”), as well as theCounty of Hawaii and its Mayor, Chief of Police, and PoliceDepartment (collectively, “the County”), under 42 U.S.C.§ 1983. Young alleged, primarily, that the denial of hisapplication for a handgun license violated his SecondAmendment right to carry a loaded handgun in public forself-defense.


The State filed a motion to dismiss Young’s claims underFederal Rules of Civil Procedure 12(b)(1) and 12(b)(6), andthe County filed a motion to dismiss the claims under Rule12(b)(6). The district court granted both motions. As to theState, the district court found that Young’s claims (for bothmonetary and injunctive relief) were barred by sovereignimmunity. Dismissing Young’s claims against the County onthe merits, the district court found that section 134-9 “doesnot implicate activity protected by the Second Amendment”because that Amendment “establishes only a narrowindividual right to keep an operable handgun at home for self-defense.” Young v. Hawaii, 911 F. Supp. 2d 972, 989–90 (D.Haw. 2012). In the alternative, the district court indicated thatit would uphold section 134-9’s open- and concealed-carrylimitations under intermediate scrutiny. Id. at 990–91. Youngtimely appealed.

In 2018, a three-judge panel of our court reversed thedistrict court’s dismissal of Young’s Second Amendmentclaim against the County, holding that he “has indeed stateda claim that section 134-9’s limitations on the issuance ofopen carry licenses violate the Second Amendment.” Youngv. Hawaii, 896 F.3d 1044, 1074 (9th Cir. 2018). The paneldismissed Young’s appeal as to the State. Id.

We then granted rehearing en banc, thus vacating thethree-judge panel’s decision. Young v. Hawaii, 915 F.3d 681(9th Cir. 2019).

II

At the heart of this case is a straightforward question:Does the Second Amendment, as originally understood,


protect the right of an ordinary, law-abiding citizen to carrya handgun openly for self-defense outside the home?

The majority holds that it does not—and that a total banon carrying a handgun outside the home does not implicatethe Second Amendment right to bear arms whatsoever. Themajority reaches this startling conclusion not because it findsthat the text of the Second Amendment supports it, that earlyAmerican cases interpreted the Amendment in this way, noreven that open public carry was regularly and uncriticallysubject to legislative prohibitions across our country’s earlyhistory. Instead, the majority has declared that a state mayconstitutionally forbid all public carry of firearms, based onthe utterly inconsequential fact that the lawful manner ofopen public carry has historically been subject to modestregulation (but never to outright prohibition).

Respectfully, the majority’s opinion—and in particular,its extreme and bizarre reliance on the mere fact of somehistorical regulation of firearms—represents a grossmisapplication of the textual and historical inquiries thatHeller demands. Under appropriate inspection, the criticalsources on the meaning of the Second Amendment—its text,its historical interpretations by the commentators and courtsmost proximate to the Founding, and its treatment by earlylegislatures—unequivocally demonstrate that the Amendmentdoes indeed protect the right to carry a gun outside the homefor self-defense, even if that right might be subject to someregulation at its edges.

A

To begin, as we must, with the text: The SecondAmendment guarantees that “the right of the people to keep


and bear Arms, shall not be infringed.” U.S. Const. amend. II.Critically, the Amendment protects not only the right to“keep” arms, but also the right to “bear” arms. Central toYoung’s challenge is the latter of these two verbs.

It is hornbook constitutional law that “to bear armsimplies something more than mere keeping.” Thomas M.Cooley, The General Principles of Constitutional Law in theUnited States of America 271 (1880). Indeed, the SupremeCourt in Heller was clear about what it means to “bear” arms:“At the time of the founding, as now, to ‘bear’ meant to‘carry.’” 554 U.S. at 584. That the Constitution delineates aspecific right to carry a firearm—as distinguished from theright simply to keep a firearm—strongly implies the right totake one’s firearm outside the home in which it is kept.

The Founding-era dictionaries relied upon by the Court inHeller confirm this intuition, making clear that one wouldtypically “bear” a firearm when carrying it in garments wornoutside the home. See 1 Samuel Johnson, Dictionary of theEnglish Language 161 (4th ed. 1773) (reprinted 1978)(defining “Bear” as “To carry as a mark of distinction. . . . Sowe say, to bear arms in a coat” (first emphasis added)), citedin Heller, 554 U.S. at 584; Noah Webster, AmericanDictionary of the English Language (1828) (unpaginated)(defining “Bear” as “To wear; to bear as a mark of authorityor distinction; as, to bear a sword, a badge, a name; to beararms in a coat”), cited in Heller, 554 U.S. at 584. Wearingone’s firearm in a coat or carrying it in one’s pocket arestrong indicia of activity that would be expected to take placeoutside the home.

Moreover, to deny that the right to “bear Arms” protectsat least some degree of public carry would render it mere


surplusage, coextensive with the separately enumerated rightto “keep” a gun in the home. Cf. Marbury v. Madison, 5 U.S.(1 Cranch) 137, 174 (1803) (“It cannot be presumed that anyclause in the constitution is intended to be without effect. . . .”); see also Drake v. Filko, 724 F.3d 426, 444 (3d Cir.2013) (Hardiman, J., dissenting) (“[Such a reading] wouldconflate ‘bearing’ with ‘keeping,’ in derogation of [Heller’s]holding that the verbs codified distinct rights . . . .”).

The evidence that the Second Amendment’s Framers andratifiers understood the right to bear arms to encompasspublic carry is not only lexical, but logical. The Court inHeller observed that the right to “bear arms” historicallyreferred to a right to “wear, bear, or carry upon the person orin the clothing or in a pocket, for the purpose of being armedand ready for offensive or defensive action in a case ofconflict with another person.” 554 U.S. at 584 (quotingMuscarello v. United States, 524 U.S. 125, 143 (1998)(Ginsburg, J., dissenting)) (alterations omitted and emphasisadded). Such “conflict” or “confrontation” with anotherperson is at least as apt to arise outside the home as it isinside the home—and perhaps even more so. See Wrenn v.District of Columbia, 864 F.3d 650, 657 (D.C. Cir. 2017)(“[T]he Amendment’s core lawful purpose is self-defense,and the need for that might arise beyond as well as within thehome.” (internal quotation marks and citation omitted));Moore v. Madigan, 702 F.3d 933, 941 (7th Cir. 2012) (“[T]heinterest in self-protection is as great outside as inside thehome.”). Indeed, it would require a highly unnatural readingof the text to infer “that the Framers understood the SecondAmendment to protect little more than carrying a gun fromthe bedroom to the kitchen” in case a conflict arose along theway. Peruta v. California, 137 S. Ct. 1995, 1998 (2017)(Thomas, J., dissenting from denial of certiorari).


The opinions in Heller and McDonald underscore thisstraightforward understanding of “bear.” Heller described the“inherent right of self-defense” as “most acute” within thehome, implying that the right does extend elsewhere, even ifless “acutely.” 554 U.S. at 628 (emphasis added). McDonaldsimilarly described the right as “most notabl[e]” within thehome, implying the right does extend elsewhere, even if less“notably.” 561 U.S. at 780 (emphasis added). Heller also tookpains to avoid “cast[ing] doubt” on “laws forbidding thecarrying of firearms in sensitive places such as schools andgovernment buildings.” 554 U.S. at 626. But why botherclarifying the Second Amendment’s application inparticularly sensitive public places if it does not apply, at all,in any public place?

In short, the Second Amendment’s text—understood byreference to the historical sources relied upon by Heller andMcDonald—points toward the conclusion that public carrylies within the scope of the Amendment’s protections. Thatthe majority altogether declines to engage with textualanalysis is telling.

B

Next, the history of the Second Amendment confirmswhat the text so strongly suggests: that the Amendmentencompasses a general right to carry firearms openly inpublic.

1

As guided by Heller, the historical inquiry begins with thewritings of “important founding-era legal scholars”—the


evidence most probative of how the Framers understood theright to bear arms. 554 U.S. at 605.

The plain textual understanding of “bear arms” findsunequivocal support in the most prominent, widely circulatedlegal treatises from throughout the Founding era. In an earlyAmerican edition of Blackstone’s Commentaries on the Lawsof England—indeed, the “most important” edition, as Hellerpoints out, see 554 U.S. at 594—St. George Tucker, a lawprofessor at the College of William & Mary and an influentialAntifederalist, insisted that the right to armed self-defense isthe “first law of nature” and that “the right of the people tokeep and bear arms” is the “true palladium of liberty.”1 1 St.George Tucker, Blackstone’s Commentaries: With Notes ofReference to the Constitution and Laws of the FederalGovernment of the United States; and of the Commonwealthof Virginia app. n.D, at 300 (Phil., William Young Birch &Abraham Small 1803); see also McDonald, 561 U.S. at 769(treating Tucker’s notes on Blackstone as heavily instructivein interpreting the Second Amendment); Heller, 554 U.S. at606 (same). Even more explicitly, Tucker wrote that “[i]f . . .congress were to pass a law prohibiting any person frombearing arms, as a means of preventing insurrections, thejudicial courts . . . would be able to pronounce decidedlyupon the constitutionality of these means.” 1 Tucker, supra,at app. n.D, at 289; see also Michael P. O’Shea, Modeling theSecond Amendment Right to Carry Arms (I): JudicialTradition and the Scope of “Bearing Arms” for Self-Defense,

1 Hawaii bizarrely suggests that we should not focus too heavily onTucker, whom Hawaii discounts as “a single nineteenth-centurycommentator.” This is a strange attack, indeed, given the Supreme Court’sdirect reliance on Tucker’s notes in both McDonald, 561 U.S. at 769, andHeller, 554 U.S. at 606. Tucker’s notes deserve similar weight here.


61 Am. U. L. Rev. 585, 637–38 & n.262 (2012). Indeed, asTucker explained, “[i]n many parts of the United States, aman no more thinks, of going out of his house on anyoccasion, without his rifle or musket in his hand, than anEuropean fine gentleman without his sword by his side.”5 Tucker, supra, at app. n.B, at 14.

Blackstone himself espoused a similar view of theinviolability of an Englishman’s right to bear arms, whichwas most notably codified in the 1689 English Declaration ofRights as the right of Protestants to “have Arms for theirDefence suitable to their Conditions, and as allowed by Law.”Bill of Rights 1689, 1 W. & M., ch. 2, § 7 (Eng.); see alsoAlden v. Maine, 527 U.S. 706, 715 (1999) (noting thatBlackstone’s works “constituted the preeminent authority onEnglish law for the founding generation”). As Blackstoneexplained, the 1689 Declaration enshrined “the natural rightof resistance and self-preservation” and “the right of havingand using arms for self-preservation and defence.” 1 WilliamBlackstone, Commentaries *144.2 It followed fromBlackstone’s premise that such a right—the predecessor toour Second Amendment—“was by the time of the founding

2 Blackstone was far from alone in recognizing a natural right to self-defense “belong[ing] to [all] persons merely in a state of nature, and whichevery man is intitled to enjoy whether out of society or in it.” 1 WilliamBlackstone, Commentaries *123. Quite a few commentators of that eralikewise championed such a right. See Leonard W. Levy, Origins of theBill of Rights 140–41 (2001) (referencing a 1769 article in the prominentcolonial newspaper A Journal of the Times, which described the Englishright as “a natural right which the people have reserved to themselves,confirmed by the Bill of Rights, to keep arms for their own defence”);David B. Kopel, The Natural Right of Self-Defense: Heller’s Lesson forthe World, 59 Syracuse L. Rev. 235, 242 (2008) (“The Anglo-Americanslearned the language of natural rights, including the natural right of self-defense . . . .”).


understood to be an individual right protecting against bothpublic and private violence.” Heller, 554 U.S. at 594(emphasis added); see also 2 William Blackstone,Commentaries *441 (Edward Christian ed. 1795)(“[E]veryone is at liberty to keep or carry a gun, if he doesnot use it for the [unlawful] destruction of game.” (emphasisadded)).

2

Following Heller’s historical imperative, the inquiry turnsto nineteenth-century judicial interpretation of the right tobear arms, whether as part of the Second Amendment oranalogous state constitutional provisions. See 554 U.S. at610–14. For by analyzing “how the Second Amendment wasinterpreted . . . immediately after its ratification,” we can“determine the [original] public understanding of [its] text.”Id. at 605. Many of the same nineteenth-century casesmarshaled in Heller, to prove that the Second Amendmentsecures an individual right to self-defense, reveal just aspersuasively that the Amendment encompasses a right tocarry a firearm openly outside the home.

a

The first of these is Bliss v. Commonwealth, 12 Ky.(2 Litt.) 90 (1822), cited in Heller, 554 U.S. at 585 n. 9, adecision “especially significant both because it is nearest intime to the founding era and because the state court assumed(just as [Heller] does) that the constitutional provision atissue codified a preexisting right,” Nelson Lund, The SecondAmendment, Heller, and Originalist Jurisprudence, 56 UCLAL. Rev. 1343, 1360 (2009) (footnote omitted). InterpretingKentucky’s Second Amendment analogue—which provided


that “the right of the citizens to bear arms in defense ofthemselves and the state, shall not be questioned”—the state’shighest court had no doubt that any law restricting the publiccarry of firearms would “import a restraint on the right of thecitizens to bear arms.” Bliss, 12 Ky. (2 Litt.) at 90, 92. Thecourt then invalidated a restriction on the concealed carry ofweapons, despite the availability of open carry, reasoning that“whatever restrains the full and complete exercise of [theright to bear arms], though not an entire destruction of it, isforbidden by the explicit language of the constitution.” Id. at91–92. Kentucky later amended its constitution to allow thelegislature to “pass laws to prevent persons from carryingconcealed arms,” Ky. Const. art. XIII, § 25 (1850) (emphasisadded), but left untouched the premise in Bliss that the rightto bear arms protects open carry.

Tennessee’s highest court offered its own, similarinterpretation of the right to bear arms in Simpson v. State, 13Tenn. (5 Yer.) 356 (1833), cited in Heller, 554 U.S. at 585n.9, 603, 614. There, after Simpson was convicted ofdisturbing the peace by appearing armed in public, he faultedthe indictment for failing to require clear proof of actualviolence. Id. at 357–58. The high court agreed. Id. at 357–60.First, the court cast doubt on the State’s argument thatEnglish law would have allowed conviction without proof ofactual “fighting of two or more persons.” Id. at 357–58(quoting 4 William Blackstone, Commentaries *145).Second, the court explained that even assuming English lawhad criminalized the carrying of weapons without proof ofactual violence, the Tennessee “constitution ha[d] completelyabrogated it.” Id. at 360. No such prohibition could survivethe state constitution’s grant of “an express power . . . securedto all the free citizens of the state to keep and bear arms for


their defence, without any qualification whatever as to theirkind or nature.” Id.

In 1840, the Alabama Supreme Court offered a similarinterpretation of its own state’s constitution. See State v. Reid,1 Ala. 612 (1840), cited in Heller, 554 U.S. at 585 n.9, 629.Construing the Alabama “right to bear arms, in defence of[]self and the State,” the court declared that an Alabamianmust be permitted some means of carrying a weapon in publicfor self-defense. Id. at 616–17. The court ultimately upheld arestriction on “the evil practice of carrying weapons secretly,”citing the legislature’s power “to enact laws in regard to themanner in which arms shall be borne. . . . as may be dictatedby the safety of the people and the advancement of publicmorals.” Id. at 616 (emphasis added). But the court madeclear where that legislative power ran dry:

We do not desire to be understood asmaintaining, that in regulating the manner ofbearing arms, the authority of the Legislaturehas no other limit than its own discretion. Astatute which, under the pretence ofregulating, amounts to a destruction of theright, or which requires arms to be so borne asto render them wholly useless for the purposeof defence, would be clearly unconstitutional.

Id. at 616–17.3

3 The majority curiously (and erroneously) suggests that, manydecades later, the Alabama Supreme Court recognized a state power toimpose “severe restrictions” on open public carry in a case that upheld aprohibition against carrying certain arms on private property owned byanother. See Maj. Op. 77–78 (citing Isaiah v. State, 58 So. 53 (Ala.


The Georgia Supreme Court embraced precisely the sameposition in an opinion central to the Supreme Court’shistorical analysis in Heller. See Nunn v. State, 1 Ga. 243(1846), cited in Heller, 554 U.S. at 585 n.9, 612–13, 626,629; O’Shea, supra, at 627 (“No case, historic or recent, isdiscussed more prominently or positively in Heller than theGeorgia Supreme Court’s 1846 decision in Nunn v. State.”).There, the court considered a Second Amendment challengeto a statute that criminalized carrying a pistol, either openlyor concealed. Nunn, 1 Ga. at 245–46. Starting off with a clearstatement of the constitutional guarantee, the court explained:“The right of the whole people, old and young, men, womenand boys, and not militia only, to keep and bear arms of everydescription, and not such merely as are used by the militia,shall not be infringed, curtailed, or broken in upon, in thesmallest degree . . . .” Id. at 251 (emphasis omitted). Withthose Second Amendment lines properly set, the court heldthat Georgia’s statute had gone too far:

[S]o far as the act of 1837 seeks to suppressthe practice of carrying certain weaponssecretly, that it is valid, inasmuch as it doesnot deprive the citizen of his natural right ofself-defence, or of his constitutional right tokeep and bear arms. But that so much of it, ascontains a prohibition against bearing arms

1911)). Aside from relying on a concurrence rather than the majorityopinion in that case, the majority fails to point out that the law specificallyallowed open carry on public highways “or elsewhere other than upon thepremises of another.” Isaiah, 58 So. at 54. Accordingly, the court held thatsuch a restriction was constitutional specifically because it “merelyprevents the carrying of arms for offensive purposes, and does not deprivea person of the right to bear arms in defense of himself or the state.” Id.


openly, is in conflict with the Constitution,and void . . . .

Id. We should afford Nunn’s understanding of the SecondAmendment significant weight because, as Heller explains,“[i]ts opinion perfectly captured the way in which theoperative clause of the Second Amendment furthers thepurpose announced in the prefatory clause.” 554 U.S. at 612.

The Louisiana Supreme Court soon followed the courseset by Alabama and Georgia. See State v. Chandler, 5 La.Ann. 489 (1850), cited in Heller, 554 U.S. at 585 n.9, 613,626. The high court first rejected Chandler’s SecondAmendment challenge to a Louisiana law prohibitingconcealed carry, reasoning that the law was “absolutelynecessary to counteract a vicious state of society, growing outof the habit of carrying concealed weapons, and to preventbloodshed and assassinations committed upon unsuspectingpersons.” Id. at 489–90. But, in precisely the same manner asthe Nunn and Reid courts, the Chandler court drew the linewhich the legislature could not cross. The court explained thata prohibition on concealed carry could be held constitutionalbecause it “interfered with no man’s right to carry arms . . .‘in full open view,’ which places men upon an equality. Thisis the right guaranteed by the Constitution of the UnitedStates . . . .” Id. at 490 (emphasis added); see also Heller, 554U.S. at 613 (citing favorably Chandler’s holding that“citizens had a right to carry arms openly”).

The majority largely rejects the lessons of these cases byfirst suggesting that only Bliss could support the view thatopen public carry was historically understood to be within thescope of the Second Amendment, then characterizing Bliss asan “isolated decision.” See Maj. Op. 74–75, 86. While Bliss


may have gone farther than other nineteenth-century cases inholding that any restraint on “the full and complete exerciseof th[e] right [to bear arms] . . . is forbidden by the . . .constitution,” 12 Ky. (2 Litt.) at 91–92, it could hardly bedescribed as an outlier for purposes of the issue before ushere. Our question is not whether the Second Amendmentwas historically understood to foreclose any and allregulation of public carry. Rather, the question is and must bewhether the right to “keep and bear Arms” was originallyunderstood to limit states’ power to restrict the freedom tocarry a firearm in public for self-defense. And Bliss is farfrom the only nineteenth-century case to hold that extensiveprohibitions on open carry would indeed infringe on aconstitutionally protected right—even if the manner of openpublic carry could be regulated at its margins. Simpson, Reid,Nunn, and Chandler all stand for precisely that proposition.4

In short, the same nineteenth-century cases foundinstructive by the Supreme Court in Heller underscore whatnineteenth-century legal commentator John Ordronaux (alsocited in Heller) aptly summarized: Though “a State [might]enact[] laws regulating the manner in which arms may becarried,” including “the carrying of concealed weapons,” any“statute forbidding the bearing of arms openly would . . .infringe[]” the Second Amendment. John Ordronaux,Constitutional Legislation in the United States: Its Origin,and Application to the Relative Powers of Congress, and of

4 And, just after the turn of the twentieth century, the Supreme Courtof Idaho likewise struck down a robust territorial prohibition against thepublic carry of firearms, holding that it violated of the Second Amendmentbecause “the legislature has no power to prohibit a citizen from bearingarms in any portion of the state of Idaho, whether within or without thecorporate limits of cities, towns, and villages.” In re Brickey, 70 P. 609,609 (Idaho 1902).


State Legislatures 242–43 (1891), cited in Heller, 554 U.S.at 619.

b

The majority observes that there were some judicialproponents of a more limited right to bear arms during thenineteenth century. See Maj. Op. 79–84. But their reasoningrests on the untenable militia-based view of the right, whichcarries no interpretive weight after Heller.

Most prominent is the Arkansas Supreme Court’s 1842interpretation of the right in State v. Buzzard, 4 Ark. 18(1842). There, a divided court upheld a prohibition on theconcealed carry of “any pistol, dirk, butcher or large knife, ora sword in a cane,” id. at 18, but each judge in the splinteredmajority appeared poised to go further. Chief Justice Ringoadvocated the view that the Second Amendment did not barthe Arkansas legislature from prohibiting any carrying offirearms: “[N]o enactment on this subject, which neitherdirectly nor indirectly so operates as to impair or renderinefficient the means provided by the Constitution for thedefense of the State, can be adjudged invalid on the groundthat it is repugnant to the Constitution.” Id. at 27 (opinion ofRingo, C.J.). Chief Justice Ringo believed this to be sospecifically because such restrictions would not “detractanything from the power of the people to defend their freestate and the established institutions of the country.” Id.Justice Dickinson echoed this view, writing that the SecondAmendment was nothing “but an assertion of that generalright of sovereignty belonging to independent nations toregulate their military force,” thus finding no individual rightwithin its guarantee. Id. at 32 (opinion of Dickinson, J.); but


see id. at 34–36 (Lacy, J., dissenting) (viewing the SecondAmendment as an individual right to self-defense).

Several other nineteenth-century courts hewed toBuzzard’s approach and upheld laws restricting public carrywithout emphasizing, as did courts in Nunn’s camp, the limitsof legislative authority. See Hill v. State, 53 Ga. 472, 474–77(1874) (upholding prohibition on carrying weapons “to anycourt of justice . . . or any place of public worship, or anyother public gathering . . . except militia muster grounds”);English v. State, 35 Tex. 473, 474, 480 (1871) (upholdingprohibition on carrying “pistols, dirks, daggers, slungshots,swordcanes, spears, brass-knuckles and bowie knives”); Statev. Workman, 14 S.E. 9, 10–12 (W. Va. 1891) (upholdingpresumption of criminality “when a man is found goingaround with a revolver, razor, billy, or brass knuckles uponhis person”). Like Buzzard, each decision was explicitlypremised on a militia-focused view of the right to bear arms.See Hill, 53 Ga. at 475 (“In what manner the right to keep andbear these pests of society [dirks, bowie knives, and the like],can encourage or secure the existence of a militia, andespecially of a well regulated militia, I am not able todivine.”); English, 35 Tex. at 477 (“The terms dirks, daggers,slungshots, sword-canes, brass-knuckles and bowie knives,belong to no military vocabulary.”); Workman, 14 S.E. at 11(“So, also, in regard to the kind of arms referred to in theamendment, it must be held to refer to the weapons of warfareto be used by the militia . . . .”).5

5 Moreover, not even all the cases with militia-focused views of theright to bear arms took Buzzard’s approach to open public carry. Severalsuch cases protected the right to bear arms in a way that supports, or is atleast consistent with, a right to such carry. See, e.g., Andrews v. State,50 Tenn. (3 Heisk.) 165, 186–87 (1871) (holding that, if a pistol “is


With Heller on the books, cases in Buzzard’s flock offerlittle instructive value. That is because Heller made clear thatthe Second Amendment is, and always has been, anindividual right centered on self-defense; it has never been aright to be exercised only in connection with a militia. See554 U.S. at 592, 599, 616; see also Wrenn, 864 F.3d at 658(reasoning that such cases are “sapped of authority byHeller”); Moore, 702 F.3d at 941 (treating “the historicalissues as settled by Heller”); O’Shea, supra, at 653(“Decisions like English . . . have little relevance todetermining the scope of Second Amendment carry rightstoday . . . [because] the question presented by current carrylitigation is whether firearms that are constitutionallyprotected, as Heller holds handguns to be, may be carriedoutside the home pursuant to a constitutional right to beararms that is not a hybrid individual right [or] a fictive‘collective right’ . . . , but instead is centrally concerned withself-defense.”). Contrary to the majority’s suggestion, Maj.Op. 116, recognition of this reality does not require one tobelieve that Heller directly answered the historical questionbefore us. But Heller undeniably dictates which historicalquestion we must now endeavor to answer: Was the right tobear arms for the purpose of individual self-defensehistorically understood to protect a person’s right to carrycommon arms in public? Cases like Buzzard offer historicalanswers to a different question altogether—namely, whetheropen public carry of handguns was protected by a right to

adapted to the usual equipment of the soldier,” then a statute that “forbidsby its terms the carrying of the weapon publicly or privately, withoutregard to time or place, or circumstances . . . . violates the constitutionalright to keep arms”); Aymette v. State, 21 Tenn. (2 Hum.) 154, 160 (1840)(“In the nature of things, if they were not allowed to bear arms openly,they could not bear them in their defence of the State at all.”).


bear arms for the specific purpose of facilitating the militia’s“defen[se] [of the] free state and the established institutionsof the country.” Buzzard, 4 Ark. at 27 (opinion of Ringo,C.J.).6

Although ours is an historical inquiry, we are judges, nothistorians. And, bound as the inferior court that we are, wemay not revisit questions of historical interpretation alreadydecided in binding decisions of the Supreme Court, as themajority seems so keen to do. Rather, we may only assesswhether the right to bear arms extends outside the home onthe understanding—dictated by Heller—that the right is anindividual one centered on self-defense. On such anunderstanding, cases like Buzzard only bear upon the entirelyirrelevant question of whether open public carry wasembraced by state constitutions’ militia-focused provisionsfor keeping and bearing arms (or by erroneously militia-focused views of the Second Amendment). We, by contrast,are interested in whether open public carry is embraced by theU.S. Constitution’s individual right to “keep and bear Arms.”

6 The majority dismisses Heller’s relevance on this point only bygrossly understating its holding. The majority suggests that Heller leftopen the possibility that the Second Amendment protects gun rights onlyto the extent that such rights are relevant to a functional militia. See Maj.Op. 120–22. Nothing could be further from the truth. To be sure, Hellerobserved that “the threat that the new Federal Government would destroythe citizens’ militia by taking away their arms was the reason that right [tokeep and bear arms]—unlike some other English rights—was codified ina written Constitution.” Heller, 554 U.S. at 599 (emphasis added). But theCourt made abundantly clear that the substance of the right that was socodified was not limited to militia-relevant firearms practices. Rather,even if it might be shown that individual “self-defense had little to do withthe right’s codification[,] it was the central component of the right itself.”Id.


c

Setting aside those cases that rest on a militia-focusedview of the right to bear arms, there remain only twonineteenth-century cases that might be read to allow severedeprivations of the right to open carry. Upon closerexamination, neither is instructive on the meaning of theSecond Amendment.

The first, State v. Duke, is an 1874 decision from theSupreme Court of Texas, which concluded that the legislaturecould confine the carry of pistols to specified places (at leastif the bearer did not have reasonable grounds to fear anattack). 42 Tex. 455, 456–59 (1875). Why the departure fromthe Nunn line of cases? One need only peek at the Texasconstitutional provision under which Duke was decided,which provided that “[e]very person shall have the right tokeep and bear arms in the lawful defense of himself or theState, under such regulations as the Legislature mayprescribe.” Id. at 458 (emphasis added). While the SecondAmendment surely tolerates some degree of regulation, itsvery text conspicuously omits any such regulatory caveat. Weshouldn’t pencil one in.7

The second case, Walburn v. Territory, is an 1899decision from the Supreme Court of the Territory ofOklahoma, decided at the very end of the nineteenth century.

7 And “even Duke, an outlier which marks perhaps the mostrestrictive interpretation that any nineteenth-century court gave to thedefense-based right to bear arms, implicitly rejected no-carry laws asunconstitutional” when it reasoned that the Texas provision “wasconstitutional because it ‘respected the right to carry a pistol openly whenneeded for self-defense.’” O’Shea, supra, at 655 (quoting Duke, 42 Tex.at 459).


See 59 P. 972 (Okla. 1899). Convicted of carrying a revolveron his person, Walburn challenged his conviction on severalgrounds, one being that Oklahoma’s carrying prohibition was“in conflict with the constitution of the United States.” Id. at973. Beyond such a general assertion, however, “[n]oauthorities [were] cited in support of this position, nor [was]the proposition very earnestly urged.” Id. Accordingly, thecourt rejected the challenge: “As at present advised, we are ofthe opinion that the statute violates none of the inhibitions ofthe constitution of the United States, and that its provisionsare within the police power of the territory.” Id. (emphasisadded). There is little reason to credit a decision thatexplicitly acknowledged a lack of due consideration. Cf.Heller, 554 U.S. at 623–24 (rejecting the dissent’s reliance onUnited States v. Miller, 307 U.S. 174 (1939), in part becauseof the incomplete briefing in Miller and its lack of a thoroughconsideration of the history of the Second Amendment).

d

In sum, there are at least five nineteenth-century cases(plus another that came two years into the twentieth century)in which state supreme courts held that the individual right tobear arms for self-defense—i.e., the right guaranteed by theSecond Amendment—must encompass a right to open publiccarry. And the majority has not cited a single apposite case inwhich any nineteenth-century court held to the contrary.

3

Finally, Heller’s historical methodology leads us to thelegislative scene following the Civil War. See 554 U.S. at614–16.


Particularly relevant in this period are the efforts of manySouthern states to disarm freedmen by adopting BlackCodes.8 For it was universally understood—by these odiouslaws’ proponents and opponents alike—that the debates overthe Black Codes were debates over freedmen’s fundamentalconstitutional rights.

On the one side, “[t]hose who opposed these injusticesfrequently stated that they infringed blacks’ constitutional

8 Those freedmen who had fought for the Union Army during the warfrequently returned home “to the States of the old Confederacy, wheresystematic efforts were made to disarm them and other blacks.”McDonald, 561 U.S. at 771; see also The Freedmen’s Bureau Bill, N.Y.Evening Post, May 30, 1866, at 2 (“In South Carolina and Florida thefreedmen are forbidden to wear or keep arms.”). These were part andparcel with the broader efforts of “those who sought to retain theinstitution of slavery . . . to eliminate more and more of the basic libertiesof slaves, free blacks, and white abolitionists.” See McDonald, 561 U.S.at 843–44 (Thomas, J., concurring in part and concurring in the judgment).

Emblematic of these efforts was an 1865 law in Mississippi thatdeclared, “no freedman, free negro or mulatto . . . shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife.” Id. at 771(majority opinion) (quoting Certain Offenses of Freedmen, 1865 Miss.Laws 165, § 1, in 1 Documentary History of Reconstruction 289 (W.Fleming ed. 1950)). The law was vigorously enforced. As an 1866 letterfrom Rodney, Mississippi, to Harper’s Weekly lamented, “[t]he militia ofthis county have seized every gun and pistol found in the hands of the (socalled) freedmen. . . . They claim that the statute laws of Mississippi donot recognize the negro as having any right to carry arms.” The LaborQuestion at the South, Harper’s Weekly, Jan. 13, 1866, at 19. Seekinghelp from outside of the state, the letter emphasized that such Mississippilaws did “not protect, but insist[ed] upon infringing on their liberties.” Id.Worse still, “[w]ithout federal enforcement of the inalienable right to keepand bear arms, . . . militias and mobs were tragically successful in waginga campaign of terror against [newly free slaves].” McDonald, 561 U.S.at 856 (Thomas, J., concurring in part and concurring in the judgment).


right to keep and bear arms.” Heller, 554 U.S. at 614; see alsoClayton E. Cramer, The Racist Roots of Gun Control, 4 Kan.J.L. & Pub. Pol’y 17, 20 (Winter 1995) (“The various BlackCodes adopted after the Civil War required blacks to obtaina license before carrying or possessing firearms . . . . Theserestrictive gun laws played a part in provoking Republicanefforts to get the Fourteenth Amendment passed.”).

As they witnessed the state governments of the formerConfederacy turning a blind eye to mob violence againstnewly freed slaves, the Reconstruction Republicans came torecognize that “when guns were outlawed, only the Klanwould have guns.” Akhil Reed Amar, The Bill of Rights:Creation and Reconstruction 266 (1998) [hereinafter Bill ofRights]. Yet such blatant injustices did not continue unnoticedby Congress, which established the Freedmen’s Bureau tovindicate the constitutional rights of freedmen still sufferingin the Reconstruction South. Working to fulfill its mandate,an 1866 report by the Bureau targeted a Kentucky law thatsought to deprive freedmen of their Second Amendmentrights: “[T]he civil law [of Kentucky] prohibits the coloredman from bearing arms . . . . Their arms are taken from themby the civil authorities . . . . Thus, the right of the people tokeep and bear arms as provided in the Constitution isinfringed.” H.R. Exec. Doc. No. 70, at 233, 236 (1866),quoted in Heller, 554 U.S. at 614–15. And Kentucky was farfrom the only state subject to scrutiny; a joint congressionalreport decried a South Carolina practice of “seizing all fire-arms found in the hands of the freedmen.” J. Comm. onReconstruction, H.R. Rep. No. 30, pt. 2, at 229 (1866)(Proposed Circular of Brigadier General R. Saxton), quotedin Heller, 554 U.S. at 615.


On the other side, even those congressmen who opposedfederal action to protect the rights of freedmen understood thefundamental constitutional rights at stake. Senator Davis ofKentucky acknowledged, on equal footing with the writ ofhabeas corpus, the right “for every man bearing his armsabout him and keeping them in his house, his castle, for hisown defense,” but argued that congressional action on thematter would usurp the role of Kentucky in caring for itscitizens. Cong. Globe, 39th Cong., 1st Sess. 370–71 (1866)(Sen. Davis) (emphasis added), cited in Heller, 554 U.S. at616.

Indeed, even before the Civil War, those who had soughtto dispossess black Americans of the right to carry arms forself-defense understood that they were really seeking todispossess black Americans of fundamental constitutionalrights. This was made all-too-painfully clear by the SupremeCourt’s infamous decision in Dred Scott v. Sandford, 60 U.S.(19 How.) 393 (1857), rendered four years before the firstshots were fired at Fort Sumter. See McDonald, 561 U.S. at807–08, 822–23, 849 (Thomas, J., concurring in part andconcurring in the judgment) (looking to Dred Scott asnecessary context for Reconstruction-era historical analysis).Writing for the Court, Chief Justice Taney—disgracefully—dismissed Dred Scott’s suit for freedom after concluding thatblack men and women had never been a part of the sovereign“people” of the United States and therefore could find norecourse in an Article III court. See Dred Scott, 60 U.S. (19How.) at 407. To hold otherwise, Chief Justice Taney wrote,would have “entitled [black Americans] to the privileges andimmunities [i.e., fundamental rights] of citizens” and thusgranted them the rights he felt only whites could enjoy: “[I]twould give them the full liberty of speech in public and inprivate upon all subjects upon which [white] citizens might


speak; to hold public meetings upon political affairs, and tokeep and carry arms wherever they went.” Id. at 416–17(emphasis added).

C

To summarize the history canvassed thus far: Theimportant Founding-era treatises, the probative nineteenth-century case law, and the post–Civil War legislative scene allreveal a single American voice. The right to bear arms mustinclude, at the least, the right to carry a firearm openly forself-defense. Perhaps surprisingly, the majority does notseriously dispute either the linguistic or historical evidencerecounted above.

Instead—and in lieu of any apposite cases that actuallyupheld the constitutionality of severe restrictions on the opencarry of firearms—the majority suggests that the clear lessonsof this evidence are undermined by the mere fact that thepublic carry of firearms has historically been subject to somemanner of regulation. While this is undoubtedly true, theevidence of such lesser restrictions on firearms carry does notcome close to supporting the majority’s view that anyrestriction upon public carry—even a complete ban—wasunderstood to be immune to constitutional scrutiny.

1

For one, the majority argues that the English right to carryweapons openly was severely limited for centuries by the1328 Statute of Northampton and suggests, in turn, that weshould incorporate such an understanding of English rightsinto our Constitution’s Second Amendment. Exploring


fourteenth-century English law books (after a thoroughdusting) reveals no such thing.

a

The Statute of Northampton made it unlawful for anordinary Englishman to “bring . . . force in affray of thepeace, nor to go nor ride armed by night nor by day, in Fairs,Markets, nor in the presence of the Justices or otherMinisters, nor in no part elsewhere.” Statute of Northampton1328, 2 Edw. 3, c. 3 (Eng.).9 By its terms, the Statute appearsto proscribe the mere act of riding armed, and in theimmediate period after Parliament enacted the statute, itappears that some English constables indeed were ordered toenforce the statute literally. See Letter to the Mayor andBailiffs of York (Jan. 30, 1334), in 3 Calendar of the CloseRolls, Edward III, at 294 (H.C. Maxwell-Lyte ed. 1898)[hereinafter Close Rolls]; see also John Carpenter & RichardWhitington, Liber Albus: The White Book of the City ofLondon 335 (Henry Thomas Riley ed. & trans., 1862) (1419)(“[N]o one, of whatever condition he be, [may] go armed inthe said city [of London] or in [its] suburbs . . . except thevadlets of the great lords of the land, . . . the serjeants-at-armsof his lordship the King, . . . and such persons as shall comein their company in aid of them . . . for saving andmaintaining the said peace . . . .”). But not all Englishconstables faced similar orders. Indeed, officers inNorthumberland and at least twelve other counties or“ridings” (sub-counties) were ordered to arrest only “personsriding or going armed to disturb the peace.” Letter to Keepers

9 An “affray,” derived from the French word “effraier” (meaning “toterrify”), is an act that disturbs the peace. See 1 William Hawkins, ATreatise of the Pleas of the Crown 134 § 1 (1716).


and Justices of Northumberland (Oct. 28, 1332), in 2 CloseRolls, supra, at 610 (emphasis added).

And in any event, looking only to Chaucer’s fourteenth-century England provides little instructive force, particularlybecause “[c]ommon-law rights developed over time.” Wrenn,864 F.3d at 660. And over the next few centuries, a narrowinterpretation of the statute—like that given toNorthumberland constables in 1332—began to dominate theEnglish legal landscape. Writing almost 300 years after thestatute was enacted, Serjeant William Hawkins, an Englishlegal commentator praised by Blackstone, explained that “nowearing of Arms is within the meaning of this Statute, unlessit be accompanied with such Circumstances as are apt toterrify the People; from whence it seems clearly to follow,That Persons of Quality are in no Danger of Offendingagainst this Statute by wearing common Weapons.” 1Hawkins, supra, at 136 § 9. Hawkins’s narrow interpretationof the statute was in accord with that of the Court of King’sBench, which clarified that “the meaning of the [Statute ofNorthampton] was to punish people who go armed to terrifythe King’s subjects.” Sir John Knight’s Case (K.B. 1686), 87Eng. Rep. 75, 76; 3 Mod. 117, 118 (emphasis added).10

10 The majority erroneously asserts that Chune v. Piott (K.B. 1615),80 Eng. Rep. 1161, eliminated from “the crime of unlawful carrying” the“element” of “in terrorem populi Regis” (i.e., carrying “to the terror of theking’s people”). See Maj. Op. 49. In actuality, Chune merely held that avalid arrest for “unlawful carrying” did not require the arresting sheriff tohave personally witnessed the accused causing terrorem populi Regis.80 Eng. Rep. at 1162. That is to say, King’s Bench loosened theevidentiary standards by which the element of in terrorem populi Regiscould be proven; it did not abandon the element itself.


To be sure, an untoward intent to terrorize the localtownsfolk was not always needed to face arrest andimprisonment. But without malicious intentions or violentbehavior, the carrying of weapons alone was prohibited onlyfor such weapons that were specifically known to have aterrorizing effect. As Blackstone interpreted the statute—aninterpretation credited by Heller, 554 U.S. at 627—“goingarmed, with dangerous or unusual weapons, is a crimeagainst the public peace, by terrifying the good people of theland.” 4 William Blackstone, Commentaries *149 (emphasisadded); accord Joseph Keble, An Assistance to Justices of thePeace, for the Easier Performance of their Duty 147 (1689);Francis Wharton, A Treatise on the Criminal Law of theUnited States 932 § 2497 (4th ed. 1857). Similarly, Hawkinswrote that “a Man cannot excuse the wearing [of] suchArmour” even “by alledging that such a one threatened him.”1 Hawkins, supra, at 136 § 8; accord Wharton, supra, at 932§ 2497. But clearly not all weapons can be characterized as“dangerous or unusual.” Indeed, Heller itself recognized thatthe Second Amendment might not preclude restrictions onweapons of that kind. 554 U.S. at 627. Such an exceptionwould—inexplicably—swallow up the whole of theAmendment’s protections if all firearms were defined as“dangerous or usual” per se. See Moore, 702 F.3d at 936(“[T]he Court cannot have thought all guns are ‘dangerous orunusual’ and can be banned, as otherwise there would be noright to keep a handgun in one’s home for self-defense.”).

Consequently, there is little in the Statute of Northamptonto suggest that it supports a ban on carrying common (notunusual) arms for defense (not terror).


b

More fundamentally, it would be misguided to acceptHawaii’s invitation to import medieval English law wholesaleinto our Second Amendment jurisprudence.

While English law is certainly relevant to our historicalinquiry insofar as the Second Amendment “codified a pre-existing right,” Heller, 554 U.S. at 592, our aim here is notmerely to discover the rights of the English. There is ascholarly consensus that the 1689 English right to have armswas less protective than its American counterpart. SeeJonathan Meltzer, Note, Open Carry for All: Heller and OurNineteenth-Century Second Amendment, 123 Yale L.J. 1486,1500 (2014); Joyce Lee Malcolm, To Keep and Bear Arms:The Origins of an Anglo-American Right 120–22 (1994).Illustratively, the English right was “not available to thewhole population, given that it was restricted to Protestants,and like all written English rights it was held only against theCrown, not Parliament.” Heller, 554 U.S. at 593. In keepingwith that limited scope, it included a regulatory caveat of thetype consciously spurned by the Framers of the SecondAmendment, only guaranteeing the right of Protestants tohave arms “as allowed by law.” See Malcolm, supra, at 121,162.

Unsurprisingly, then, not all laws that restrictedEnglishmen’s right to have arms found a place across theAtlantic. For example, as St. George Tucker observed, itwould have been strange to apply in the United States anEnglish law that presumed any gathering of armed men wastreasonous, because “the right to bear arms is recognized andsecured in the [American] constitution itself.” 5 Tucker,supra, at app. n.B, at 19; see also Cooley, supra, at 270


(noting that the Second Amendment “was adopted with somemodification and enlargement from the English Bill ofRights”); William Rawle, A View of the Constitution of theUnited States of America 126 (2d ed. 1829) (writing that theEnglish right, unlike the Second Amendment, “is allowedmore or less sparingly, according to circumstances”). Thus,instead of stitching into the Second Amendment every oddlaw that hemmed in the rights of fourteenth-centuryEnglishmen, we are to consider English laws only insofar asthey inform the original public understanding of the SecondAmendment.

To the extent that the Framers did consider the Statute ofNorthampton instructive of the preexisting right to bear arms,they took a narrow view of its prohibitions. See EugeneVolokh, The First and Second Amendments, 109 Colum. L.Rev. Sidebar 97, 101 (2009). For example, Justice JamesWilson, a leading drafter of the Constitution, creditedSerjeant Hawkins and construed the statute to prohibit armingoneself “with dangerous and unusual weapons, in such amanner, as will naturally diffuse a terrour among the people.”2 James Wilson, Collected Works of James Wilson 1138(Kermit L. Hall & Mark D. Hall eds. 1967); see also Volokh,supra, at 101 (“American benchbooks for justices of thepeace echoed [Wilson’s observation], citing Hawkins . . . .”).William Rawle, a prominent member of the PennsylvaniaAssembly that ratified the Constitution, likewise citedHawkins and wrote that the right to bear arms would not ruleout a law prohibiting “the carrying of arms abroad by a singleindividual” if such carry was “attended with circumstancesgiving [observers] just reason to fear that he purposes to makean unlawful use of them.” Rawle, supra, at 126.


Justice Wilson and William Rawle’s reading of the statuteis confirmed by the various state regulations, adoptedthroughout the Founding era and beyond, that were expresslymodelled after the Statute of Northampton. See Eric M.Ruben & Saul Cornell, Firearm Regionalism and PublicCarry: Placing Southern Antebellum Case Law in Context,125 Yale L.J.F. 121, 129 (2015) (“[S]everal early Americanstates expressly incorporated versions of the Statute ofNorthampton into their laws.”). The state-enactedNorthampton analogues sought to regulate particularlydisruptive—more specifically, terrifying—arms carrying. Forexample, Massachusetts in 1794 enacted a law authorizingjustices of the peace to arrest “all affrayers, rioters, disturbers,or breakers of the peace, and such as shall ride or go armedoffensively, to the fear or terror of the good citizens.” 1794Mass. Acts 66, ch. 26 (emphasis added); see also 1786 Va.Acts 35, ch. XLIX (prohibiting going “armed by night []or byday, in fairs or markets, or in other places, in terror of thecounty”).

The North Carolina Supreme Court offered a definitiveinterpretation of that state’s Northampton analogue in 1843,providing us with the benefit of a more thorough discussionof its elements. See State v. Huntly, 25 N.C. (3 Ired.) 418(1843). The court clarified:

[T]he carrying of a gun per se constitutes nooffence. For any lawful purpose—either ofbusiness or amusement—the citizen is atperfect liberty to carry his gun. It is thewicked purpose—and the mischievousresult—which essentially constitute the crime.He shall not carry about this or any otherweapon of death to terrify and alarm, and in


such manner as naturally will terrify andalarm, a peaceful people.

Id. at 422–23 (emphasis added).

2

Next, the majority refers to a smattering of nineteenth-century gun regulations, most of which appear to have goneunchallenged in the courts. See Maj. Op. 65–73.

As a threshold matter, one should be wary of diviningconstitutional meaning from the existence of historicalregulations that largely evaded constitutional scrutiny and forwhich the majority offers no enforcement history. This isespecially true where, as here, as “[f]or most of our history[,]the question” of their constitutionality simply “did not presentitself”—not least because for more than a century, “the Billof Rights was not thought applicable to the States, and theFederal Government did not significantly regulate thepossession of firearms by law-abiding citizens.” Heller, 554U.S. at 625–26.

In any event, the nineteenth-century statutes relied uponby the majority simply do not say what the majority claimsthey say—much less what it needs them to say—which is thatthe Constitution was generally understood to allow states to“forcefully prohibit[] the mere act of carrying a firearm.”Maj. Op. 66–67.

a

Principally, the majority refers to various “surety” laws,as pioneered by Massachusetts and then adopted in


Wisconsin, Maine, Michigan, Virginia, Minnesota, Oregon,and West Virginia. The majority characterizes such laws as“a form of prior restraint,” an ostensibly interchangeable“alternative to a broad ban on open carry,” and asserts thatthey allowed individuals to carry weapons in public “only ifthey could demonstrate good cause.” Id. at 109–10.

Not so.

Many states during the nineteenth century required peoplewho carried weapons in a disruptive fashion to post a bond(or a “surety”) to ensure their good behavior. See, e.g., Mass.Rev. Stat. ch. 134, § 16 (1836). To enforce the suretyrequirement, such states commonly relied on a citizen-complaint mechanism. That is, if an arms carrier gave anyobserver “reasonable cause to fear an injury, or breach of thepeace,” the observer could complain to his local magistrate,who might then require the disruptive carrier “to find suretiesfor keeping the peace,” generally “for a term not exceedingsix months.” Id. But if the disruptive carrier also had“reasonable cause to fear an assault or other injury,” suchperson would be excused from posting sureties despite thecomplaint. Id. As an example of the pieces put together,Michigan’s 1846 surety law provided that if any person wentarmed with an “offensive and dangerous weapon, withoutreasonable cause to fear an assault or other injury . . . he may,on complaint of any person having reasonable cause to fearan injury or breach of the peace, be required to find suretiesfor keeping the peace.” Mich. Rev. Stat. tit. XXXI, ch. 163,§ 16 (1846).

The majority erroneously characterizes surety laws asimposing a severe restriction on the public carry of weaponsabsent good cause to fear injury. But the majority focuses on


an exception to the surety requirement (for carriers with aspecialized need for self-defense), while overlooking theclearly limited scope of the requirement in the first place:Only upon a well-founded complaint that the carrier hadthreatened “injury or a breach of the peace” did the burden topay sureties even apply. Thus, individuals were generally freeto carry weapons without having to pay a surety, unless theyhad been the subject of a specific complaint. Only then didthe “good cause” exception come into play, “exempting eventhe accused” from the burden of paying sureties. Wrenn, 864F.3d at 661. In short, “[a] showing of special need did notexpand carrying for the responsible; it shrank burdens oncarrying by the (allegedly) reckless.” Id.

Even if these laws had required all arms carriers withoutgood cause to post sureties (and they did not), they would notadd much to the relevant historical analysis. Heller saw littleweight in historical penalties that imposed only “a small fineand forfeiture of the weapon (or in a few cases a very briefstay in the local jail).” 554 U.S. at 633. Certainly, anobligation to post a surety fits that mold. Like a small fine,sureties are “‘akin to modern penalties for minor public-safety infractions like speeding or jaywalking,’ which makesthem (in the Court’s view) poor evidence of limits on the[Second] Amendment’s scope.” Wrenn, 864 F.3d at 661(quoting Heller, 554 U.S. at 633–34). In fact, sureties seemeven less noteworthy than small fines, since a disruptivecarrier—once he posted a surety—“could go on carryingwithout criminal penalty.” Id. And if he refrained frombreaching the peace, of course, the money he posted as asurety would be returned in a matter of months. Themajority’s (unsupported) assertion that such sureties would“have been a severe constraint on anyone thinking of carryinga weapon in public” is therefore unconvincing. Maj. Op. 111.


b

Next, the majority observes that some states and federalterritories restricted the particular places in which one couldlegally carry a gun. See id. at 69–70, 72. But that is hardlymore helpful to the majority than the Statute of Northamptonor the American surety statutes.

While these statutes (unlike surety laws) did impose someactual prohibitions on carrying firearms, they focusednarrowly on restricting carry in specifically enumerated,particularly sensitive public places. See, e.g., 1870 Tex. Gen.Laws 63, ch. XLVI, § 1 (prohibiting carry in “any church orreligious assembly, any school room or other place wherepersons are assembled for educational, literary or scientificpurposes, or in[] a ball room, social party or other socialgathering composed of ladies and gentlemen, or to anyelection precinct . . . or any other public assembly”); 1889Ariz. Laws 30, No. 13 §§ 1, 3 (adopting a version of theTexas statute). Such statutes establish nothing beyond theanodyne proposition—acknowledged in Heller and notdisputed here—that the Second Amendment might havehistorically tolerated “laws forbidding the carrying offirearms in sensitive places such as schools and governmentbuildings.” 554 U.S. at 626.

The fact that such laws existed hardly shows that generalprohibitions on public carry would have been understood tobe constitutional at the time. On the contrary, the only reasonto enact laws specifically prohibiting firearm carry in


sensitive places would be that carry was presumptively lawfuleverywhere else.11

c

Next, the majority identifies three U.S. territories—NewMexico, Oklahoma, and Wyoming—that enacted broadprohibitions against the public carrying of all manner ofweapons toward the end of the nineteenth century. See Maj.Op. 70–72; 1860 N.M. Laws 94, §§ 1–2 (prohibiting thecarry, “concealed or otherwise,” of “any class of pistolswhatever, bowie knife . . . Arkansas toothpick, Spanishdagger, slung-shot, or any other deadly weapon”); Okla. Stat.ch. 25, art. 47, § 2 (1890) (prohibiting “any person . . . tocarry upon or about his person any pistol, revolver, bowieknife, dirk knife loaded cane, billy, metal knuckles, or anyother offensive or defensive weapon”); 1876 Wyo. Laws 352,

11 In a similar (though somewhat more colorful) vein, the majoritycites in passing an 1880 treatise in which Benjamin Vaughan Abbottapproved of regulations that would address the particular danger posed bycareless individuals mishandling firearms as “fireworks” in public. SeeMaj. Op. 90 (citing Benjamin Vaughan Abbott, Judge and Jury 333(1880)). First, Abbott recognized that the “Constitution secures the rightof the people to keep and bear arms,” including the right of a citizen to“keep[] a gun or pistol under judicious precautions” and to “practise[] insafe places the use of it.” Abbott, supra, at 333. But, Abbott contended,a state could nonetheless enact restrictions against “keeping pistols forplaythings; carrying them carelessly in the pocket; toying with them atpicnics, on board steamers, and in saloons; exhibiting them to curiousgirls; lending them to boys; firing at random with them upon citysidewalks.” Id.

As with restrictions against the carrying of firearms in particularplaces, Abbott’s approval of restrictions against using firearms in aparticularly careless manner suggests that one would indeed have a rightto carry them in ordinary and responsible ways.


ch. 52, § 1 (prohibiting “bear[ing] upon [one’s] person,concealed or openly, any fire arm or other deadly weapon,within the limits of any city, town or village”). There areseveral reasons to be cautious about ascribing muchinterpretive significance to these laws.

First, it would be exceedingly difficult to discern whethersuch laws were enacted with a proper understanding of theindividual right to armed self-defense secured by the SecondAmendment, as opposed to the militia-oriented view of theright that was common at the time. See O’Shea, supra, at642–53; see also, e.g., Cooley, supra, at 271 (“The armsintended by the Constitution are such as are suitable for thegeneral defence of the community against invasion oroppression . . . .”); John Norton Pomeroy, An Introduction tothe Constitutional Law of the United States 152–53 § 239(1868) (“[A] militia would be useless unless the citizens wereenabled to exercise themselves in the use of warlikeweapons. . . . [But] [t]his constitutional inhibition is certainlynot violated by laws forbidding persons to carry dangerous orconcealed weapons . . . .”). Indeed, the Oklahoma statuteincluded an exception that allowed the public carry of riflesor shotguns for use “in public muster or military drills,”suggesting that it might have been enacted with a mistakenunderstanding of the nature of the right. Okla. Stat. ch. 25,art. 47, § 5 (1890).

Second, one should be hesitant to assume too much aboutthe constitutional validity of laws that sought to disarminhabitants of these Western territories, where the uniquecircumstances of life on the frontier might have motivatedterritorial legislatures to undertake more severe measuresagainst the use of weapons than we have seen reflected in the


many state laws recounted above.12 Indeed, just after the turnof the twentieth century, the Idaho Supreme Court struckdown as unconstitutional a similarly restrictive measure thathad been put in place by the territorial legislature there. SeeBrickey, 70 P. at 609. And, as with the Black Codes whichsought to suppress the ability of freedmen to own gunsfollowing the Civil War, there may be reason to questionwhether similarly illicit goals may have inspired armsrestrictions in these heavily Indian territories. See generallyAngela R. Riley, Indians and Guns, 100 Geo. L.J. 1675, 1680(2012) (“[T]he relationship of Indians and guns [in earlyAmerica] developed in parallel to African-Americans andguns, with both groups situated at the bottom of a racialhierarchy that facilitated oppression, noncitizen status, andsubjugation.”).

Third, and most fundamentally, one can learn little aboutthe general understanding of the Second Amendment fromsuch isolated statutes, which were enacted so distant from theFounding and for which we have no record of enforcement.Cf. Heller, 554 U.S. at 632 (“[W]e would not stake ourinterpretation of the Second Amendment upon a single law

12 The majority cites only one state (as opposed to territorial) law thatpurportedly imposed such a broad prohibition. See 1881 Kan. Sess. Laws80, 92, ch. 37, § 23 (“The [city] council shall prohibit and punish thecarrying of firearms, or other dangerous or deadly weapons, concealed orotherwise . . . .”). But this provision did not actually impose a direct,statewide prohibition on carry. Rather, it was contained in the organicstatute incorporating certain cities within the State of Kansas, which inturn directed their city councils to pass ordinances generally regulatepotential nuisances ranging from “the carrying of firearms” to the mischiefcaused by “vagrants, tramps, [and] confidence men.” Id. The majoritypresents no evidence of the nature of any municipal firearms regulationsthat were actually enacted pursuant to the Kansas statute.


. . . that contradicts the overwhelming weight of otherevidence . . . .”). Three statutes of this kind certainly do notundermine the far more extensive historical evidence insupport of a more robust view of public-carry rights at thetime of our Founding and beyond.

d

Finally, the majority suggests the overall effect of thishodgepodge of state and territorial statutes is to show that thegovernment may prohibit the public “carrying of small armscapable of being concealed, whether they are carriedconcealed or openly.” Maj. Op. 97 (emphasis added). Morespecifically, the majority attempts to justify this conclusionby observing that many of the statutes in question imposedtheir restrictions on specifically “enumerated” weapons that“were capable of being concealed.” Id. at 71. But this line ofreasoning falters on three distinct levels:

First, the category of “weapons capable of beingconcealed” appears to be an invention of the majority’s owncreation or, at the very least, an historical anachronism. Theoldest usage of that phrase the majority can conjure is froma 1923 California statute. Id. at 94 (citing 1923 Cal. Stat. 695,ch. 339). The nineteenth-century statutes themselves werecertainly not written in terms of “concealability.” And as themajority concedes, “[m]ost, but not all, of the weaponsenumerated in these statutes were capable of beingconcealed.” Id. at 71 (emphasis added). Rather—as oftenrecognized by the very courts interpreting such statutes—thecommon thread seems to be that the enumerated weaponswere more apt for use in person-to-person confrontation thanin hunting or militia activity. See, e.g., English, 35 Tex. at474 (distinguishing a statute regulating “pistols, dirks,


daggers, slungshots, swordcanes, spears, brass-knuckles andbowie knives” from the regulation of arms “useful and properto an armed militia”); Hill, 53 Ga. at 474 (same); Workman,14 S.E. at 11 (same).

That leads right into the second flaw in the majority’sreliance upon such enumerated lists: They again betray aview of the Second Amendment as being focused on militiasor hunting—for which rifles and shotguns were mostcommonly used—rather than individual self-defense. Forexample, as discussed above, the Oklahoma statute expresslyexcepted from its list of prohibited weapons the public carryof rifles or shotguns for use “in public muster or militarydrills.” Okla. Stat. ch. 25, art. 47, § 5 (1890). As alreadyexplained at length, Heller foreclosed any reliance onhistorical sources animated by such an erroneous view thatwould limit the right to “keep and bear Arms” to only itsmilitaristic applications. Moreover, Heller made clear thatrestrictions on handguns are especially repugnant to theSecond Amendment because handguns are the “quintessentialself-defense weapon.” 554 U.S. at 629. Indeed, to paraphraseHeller, “[i]t is no answer to say . . . that it is permissible toban the [carry] of handguns so long as the [carry] of otherfirearms (i.e., long guns) is allowed.” Id.

Third, most of the statutes that included versions of theenumerated list of regulated weapons were not prohibitionson open carry at all. Most were surety statutes. See Mass.Rev. Stat. ch. 134, § 16 (1836); 1838 Wis. Laws 379, 381,§ 16; Me. Rev. Stat. tit. XII, ch. 169, § 16 (1841); Mich. Rev.Stat. tit. XXXI, ch. 163, § 16 (1846); Minn. Rev. Stat. ch.112, § 18 (1851); 1854 Or. Laws 218, 220, ch. XVI, § 17.Several others were focused on restricting carry inparticularly sensitive places. See 1870 Tex. Gen. Laws 63;


1889 Ariz. Laws 30, No. 13, §§ 1, 3. The Georgia statuteprohibiting concealed carry of the enumerated weaponsexpressly allowed for their open carry. See Ga. Code pt. 4, tit,1, div. 9, § 4413 (1861). That leaves only two statutescontaining versions of the enumerated weapons list: thoseadopted by the territories of New Mexico and Oklahoma. See1860 N.M. Laws 94, § 1; Okla. Stat. ch. 25, art. 47, § 2(1890). And—for reasons already discussed in the aboveanalysis of those two, isolated, territorial statutes—they areincapable of bearing the analytical load required to establishthat “the states broadly agreed that small, concealableweapons, including firearms, could be banned from the publicsquare.” Maj. Op. 72.

D

In sum, the history extensively canvassed above leads toa straightforward conclusion: Beginning in England andthroughout the development of the early American Republic,individuals maintained the general right to carry commonfirearms openly for their own self-defense in public, providedthat they did not do so in a way that would “terrorize” theirfellow citizens or intrude upon particularly sensitive placeslike churches or schools.

Of course, the majority arrives at a starkly differentconclusion. Namely, the majority reads the history asshowing that “the government”—above and beyond its abilityto regulate which arms were legal to carry and which placesthey could be carried—“may . . . even prohibit, in publicplaces[,] . . . the open carrying of small arms capable of beingconcealed, whether they are carried concealed or openly.” Id.at 97 (emphasis added). Indeed, the majority denies that suchan extensive prohibition would implicate “conduct [within]


the historical scope of the Second Amendment” altogether.Id. at 14–15. In the majority’s words, there is simply “noright to carry arms openly in public.” Id. at 112 (emphasisadded).

This must seem strange, given that we are looking at thesame historical record, and that—with the exception ofcertain points at the margins—we appear not to disagreesignificantly on the substance of what the historical sourcesactually say. (Indeed, the majority concedes that the “historyis complicated, and the record . . . far from uniform[ly]”supports its conclusion. Id. at 40.)13 Our disagreement, itseems, is not so much over what the history says, as it is overwhat the history would need to say in order to sustain themajority’s atextual conclusion that the scope of the right to

13 On this point, one should not be misled by the majority’s baselesssuggestion that the preceding historical review has cherry-pickedfavorable evidence or somehow been an exercise in something that is “nothistory.” See Maj. Op. 116. That is flatly wrong. Once one pierces throughthe majority’s theatrical language, the inescapable fact remains that themajority has identified no historical evidence that has been “discard[ed],”see id. at 115—let alone any that would undermine the conclusionsarticulated above.

The majority’s fundamental gripe seems to be that the precedinganalysis does not (as the majority has largely done) indiscriminately roundup the sources cited in the parties’ briefs, decline to consider whethersome might merit greater weight than others, and then uncritically acceptthem all as equally instructive on the present question. It is precisely suchan oversimplified view of “history” that ought to be avoided. Otherwise,we would risk falling into exactly the habit the majority wishes to avoid:practicing “law-office history,” controlled by the parties’ self-interestedselection of historical evidence and analyzed without “proper evaluationof the relevance of the data proffered.” Alfred H. Kelly, Clio and theCourt: An Illicit Love Affair, 1965 Sup. Ct. Rev. 119, 122 n.13, cited inMaj. Op. 39 n.7.


“keep and bear Arms” extends no further than the right to“keep” arms inside the home. In other words, ourdisagreement is not one of historical exegesis, but one ofhistorical synthesis.

In order to establish its startling conclusion that thecarrying of common arms for self-defense lies completelyoutside the Second Amendment, the majority surely mustshow that complete prohibitions on open public carry werehistorically understood to be lawful. Perhaps, one wouldthink, the majority might have done so through evidence thatthe Founding generation had regular experience with suchprohibitions and understood them to pose no problem to thenew Constitution they were creating. Perhaps the majoritymight have marshaled evidence that such prohibitions hadbeen commonly upheld against relevant legal challenges inearly America. Or perhaps, at least, the majority might havefound evidence that such prohibitions, where not subjected tojudicial scrutiny, were historically widespread anduncontroversial.

But the majority has found none of the above. All themajority has managed to demonstrate is that the manner ofopen public carry has at times been regulated (by lawscriminalizing the carry of especially dangerous or unusualweapons with the intent or effect of “terrorizing the people,”surety laws, laws restricting carry in particularly sensitivepublic places, and the like), and that such narrow regulationshave at times been upheld or otherwise left unchallenged.When all is said and done, there is a vast and undeniablechasm between these (largely uncontroverted) propositionsabout the historical presence of some firearms regulation andthe far more troubling proposition that the majority today


pronounces: that public carrying of common arms couldgenerally be banned.14

The majority is left to bridge this chasm by makinglogical leaps and critically shifting the goalposts in ways itfails to justify. It is utterly baffling for the majority to contendthat, merely because the lawful manner of open public carryhas historically been regulated in certain respects, we mayconclude that the practice of public carry itself is not entitledto constitutional protection. What right enshrined in ourConstitution has not historically been regulated to somedegree? Surely, we would never hold (for example) that theright to speak publicly on political matters lies wholly outsidethe First Amendment merely because such speech has beensubject to “longstanding, accepted regulation,” cf. Maj.Op. 35, in the form of libel laws, defamation laws, and time-place-and-manner restrictions. Yet this is exactly how themajority appears to believe we must interpret the SecondAmendment. The majority’s invitation to interpret the rightto bear arms “as a second-class right, subject to an entirelydifferent body of rules than the other Bill of Rightsguarantees,” must be rejected. McDonald, 561 U.S. at 780(plurality op.).

14 The majority might object that it has sometimes “qualified” itsanalysis as to apply to prohibitions on the public carry of handgunsspecifically (though, sometimes, it has not, see, e.g., Maj. Op. 112). Asdiscussed above, any such qualification is of no moment, given that Hellermade clear that protections for handguns are especially central to theSecond Amendment because the handgun is the “quintessential self-defense weapon.” 554 U.S. at 629. If, as the majority says, public carry ofthe “quintessential self-defense weapon” can be prohibited, what cannot?


E

One last line of argument to rebut: The majority,unavailed by text and history, relies on two ostensible—butin reality, untenable—principles of constitutionalconstruction to buttress its assertion that an individual rightto armed self-defense in public would somehow contradictthe nature of our constitutional framework. Neither argumentholds water.

1

First, the majority asserts that constitutionalrights—across the board—inhere more strongly within thehome than outside the home. See Maj. Op. 98–99. Themajority cannot identify any case that actually establishessuch a “principle.” Instead, it opines that this lurking (andheretofore unidentified) notion is “reinforced . . . by the Thirdand Fourth Amendments,” which guarantee, respectively,Americans’ rights to be free from the quartering of soldiersand from unreasonable searches and seizures in their homes.Id. at 98.

To the extent they are even relevant to our question here,the lessons of the Third and Fourth Amendments cut inexactly the opposite direction of the majority’s novelapproach. The text of both the Third and the FourthAmendments explicitly announces a focus on “houses.” SeeU.S. Const. amends. III (“in any house”), IV (“in their . . .houses”). The Second Amendment, by contrast, does notmention any spatial limitations on the right to keep and beararms whatsoever. See U.S. Const. amend. II. Our inference,then, should be that unlike the Third and FourthAmendments, the Second Amendment’s lack of any reference


to the home means its protections are not specifically focusedthere. See, e.g., Russello v. United States, 464 U.S. 16, 23(1983) (“[Where a legal text] includes particular language inone section of [the document] but omits it in another sectionof the same . . . , it is generally presumed that [its drafters]act[ed] intentionally and purposely in the disparate inclusionor exclusion.” (internal quotation marks omitted)). It wouldbe odd, indeed, to infer (as the majority apparently does) thatthe express limitation of two constitutional rights to “houses”means that every other constitutional right is spatially limitedby implication. We certainly would never assume as muchabout any other enumerated right in the Constitution.

In short, it is unnecessary to reach for the Third or FourthAmendments when the Second Amendment’s own textsupplies a clear answer.

2

Second, the majority raises the structural argument that“the Second Amendment did not contradict the fundamentalprinciple that the government assumes primary responsibilityfor defending persons who enter our public spaces.” See Maj.Op. 99–107, 111–13. But this argument is foreclosed byHeller and, more fundamentally, is premised on deepmisapprehensions of the first principles of American popularsovereignty.

a

At the outset, the majority’s structural argument suggeststhat even if “keep[ing]” arms is an individual right,“bear[ing]” arms is a corporate right that belongs to thegovernment alone, which has sole authority to ensure security


in public. Such a suggestion directly contradicts Heller,which emphatically rejected the argument that the right to“keep and bear Arms” was limited to the “militia.” See554 U.S. at 579–83, 585–86. This contradiction alone wouldbe a sufficient reason to reject the majority’s assertion thatthe Second Amendment encompasses no individual right toself-defense in public.

b

But the flaws of the majority’s structural argument rundeeper than its incompatibility with Heller.

The heart of the majority’s argument is the propositionthat “[t]he states, in place of the king, assumed primaryresponsibility” for “securing what was formerly known as‘the king’s peace.’” Maj. Op. 101. The majority reasons that“maintaining the ‘king’s peace’ was the king’s duty and, inthe English view, the carrying of weapons in public areas wasan affront to the king’s authority.” Id. at 102. This entire lineof reasoning overlooks our Constitution’s profound departurefrom English ideas about the nature and locus of sovereignty.The great and enduring conceit of our Founders’ politicaltheory was their insistence on breaking any analogy betweenthe king’s sovereignty and that of the states.

What the majority overlooks is that our Constitutionrelocated the king’s sovereignty not in American State orfederal governments, but in “We the People of the UnitedStates.” U.S. Const. pmbl. Indeed, copious volumes ofscholarly ink have been spilled in showing that theConstitution’s text, history, and structure converge on this


conclusion.15 And it has been a bedrock principle ofconstitutional construction since the dawn of Americanconstitutional jurisprudence. See, e.g., Chisholm v. Georgia,2 U.S. (2 Dall.) 419, 472 (1793) (opinion of Jay, C.J.) (“InEurope the sovereignty is generally ascribed to the Prince;here it rests with the people; there, the sovereign actuallyadministers the Government; here, never in a single instance;our Governors are the agents of the people . . . .”); id. at 461(opinion of Wilson, J.) (criticizing England’s “haughtynotions of . . . state sovereignty and state supremacy” asallowing “the state [to] assum[e] a supercilious preeminenceabove the people, who have formed it”).

With a proper conception of American popularsovereignty, it should be easy to see the irrelevance of “theEnglish view” that “the carrying of weapons in public areaswas an affront to the king’s authority” insofar as it “suggestedthat the king was unwilling or unable to protect the people.”Maj. Op. 102. For an English subject to “carr[y] armspublicly . . . as a vote of no confidence in the king’s ability tomaintain [the public peace]” would be an affront to hissovereign. Id. But for an American citizen to carry armspublicly could be no such thing. The American citizen, incontrast with the English subject, is a constituent part of afree and sovereign people, whom state governments serve asagents. Indeed, the “principal object” of our Constitution wasnot to grant “new rights” from government to the people, but

15 See, e.g., Gordon S. Wood, The Creation of the American Republic:1776–1787, at 344–89 (1998); Edmund S. Morgan, Inventing the People:The Rise of Popular Sovereignty in England and America 235–306 (1988);Bernard Bailyn, The Ideological Origins of the American Revolution55–93 (1967); Akhil Reed Amar, Of Sovereignty and Federalism, 96 YaleL.J. 1425, 1429–66 (1987).


rather to “secur[e]” against the government “those rights” wealready possess by nature. 1 Wilson, supra, at 1053–54. It isthus emphatically the prerogative of the American citizen togive a “vote of no confidence” in state governments’ exerciseof those powers delegated from the sovereign peoplethemselves. See, e.g., Chisholm, 2 U.S. (2 Dall.) at 472; 4Jonathan Elliot, The Debates of the Several State Conventionson the Adoption of the Federal Constitution 9 (1888) (“Thepeople are known with certainty to have originated [ourgovernment] themselves. Those in power are their servantsand agents; and the people, without their consent, may new-model their government whenever they think proper . . . .”(statement of James Iredell)).

For the same reason, the majority’s suggestion that thevalues of federalism somehow preclude the SecondAmendment from guaranteeing an individual right to carryarms for self-defense in the public square is fundamentallymisguided. The majority’s argument is essentially this: Asbetween the federal government and the states, theConstitution gave the states “primary responsibility” for“maintaining the public peace.” Maj. Op. 100–01. And inturn, “[i]t would be anomalous in the extreme if, having goneto the trouble of spelling out the respective responsibilities ofthe new federal government and the states in 1789, theframers of the Bill of Rights undid that relationship with theSecond Amendment (adopted in 1791).” Id. at 106. By “thatrelationship,” the majority appears to refer to the ostensibleprinciple that “it is peculiarly the duty of the states to defendthe public square.” Id. at 99.

The majority’s argument begs the very question whichmust be answered. To be sure, the “general police power” is“retained by the States,” to the exclusion of any federal


general police power. United States v. Lopez, 514 U.S. 549,567 (1995). So we know that states generally have primacyover the national government for protecting the public peace.But the question here is whether the State governments wereunderstood to exercise a “duty to protect [their] citizens,”Maj. Op. 106, that also excludes the citizens’ fundamentalright to protect themselves. The relative division ofgovernmental powers between the federal and Stategovernments provides no answer to this question at all. Andthe majority’s premise—that the states’ constitutional powerto protect the public was conferred to the exclusion ofcitizens’ own right to self-defense—is unmoored from thetext and structure of the Constitution; contravenes the lessonsof Heller; is desperately ahistorical, for reasons alreadydiscussed at length; and cannot be squared with the firstprinciples of American popular sovereignty.

III

Accordingly, the majority is wrong to conclude thatH.R.S. § 134-9 does not implicate the right to bear armswhatsoever. Because the statute clearly does tread uponconduct protected by the Second Amendment, the next stepmust be to analyze it under an “appropriate level of scrutiny.”Jackson v. City & County of San Francisco, 746 F.3d 953,960 (9th Cir. 2014). In the framework developed by our courtfollowing Heller, the first question in determining theappropriate level of scrutiny is this: Does the right of anordinary citizen to bear arms openly in public for purposes ofself-defense fall within the “core” of the SecondAmendment—or does it lie somewhere else, at the peripheryof the Amendment’s guarantees? See id. at 960–61.


The Second Amendment’s text, history, and structure, andthe Supreme Court’s reasoning in Heller, all point squarely tothe same conclusion: Armed self-defense in public is at thevery core of the Second Amendment right. At the risk ofrepeating myself (though it does, apparently, bear repeating),the Second Amendment safeguards both the right to keep afirearm and the right to bear—or to carry—that firearm.Neither the text of the Amendment nor its historicalinterpretations suggests that either right has priority over theother. The obvious inference one should draw is that there isno pecking order between the “core” status of theAmendment’s expressly enumerated guarantees.16 The rightto armed self-defense—both by keeping a gun at home andby carrying one elsewhere—lies at the heart of the SecondAmendment.

Indeed, Heller made clear that the “central” purposeundergirding the Second Amendment is “the inherent right ofself-defense.” 554 U.S. at 628; see also id. at 599 (describingself-defense as “the central component of the right itself”).This is why, for instance, it was particularly troubling to theCourt in Heller that the District of Columbia had bannedhandguns—“an entire class of ‘arms’ that is overwhelminglychosen by American society for that lawful purpose [of self-defense].” Id. at 628. To be sure, Heller addressed theapplication of this right to the home—and necessarily so,given that the case involved specifically a challenge to a ban

16 By way of (illustrative) comparison, courts have been more willingto consider the non-“core” status of gun rights other than the expresslyenumerated rights to “keep” (i.e., to possess) and to “bear” (i.e., to carry)arms, such as the rights to sell certain firearms, or to manufacture firearmswith or without certain features. See, e.g., Pena v. Lindley, 898 F.3d 969,1009 (9th Cir. 2018) (Bybee, J., concurring in part and dissenting in part);United States v. Marzzarella, 614 F.3d 85, 92 n.8 (3d Cir. 2010).


on handgun possession in the home. See id. at 575–76; seealso Drake, 724 F.3d at 445 (Hardiman, J., dissenting). Butnothing in Heller remotely suggests that the core “inherentright of self-defense” was understood to stop at the walls ofone’s home. Rather, Heller’s (and subsequently McDonald’s)language suggests exactly the opposite, as it addresses theapplication of the right of self-defense to the home incomparative terms. In these cases, the Court described the“need for defense of self, family, and property” as “mostacute” within the home, Heller, 554 U.S. at 628 (emphasisadded), or “most notabl[e]” there, McDonald, 561 U.S. at 780(plurality op.) (emphasis added)—suggesting of course thatthis same core right was felt (even if perhaps less “acutely”)elsewhere.

More fundamentally, a great deal of Heller’s analysisreflects an abiding concern for the inherent right to defendone’s person, not just one’s home. For example, the Courtcited (without reference to the home) “at least seven [stateconstitutional provisions that] unequivocally protected anindividual citizen’s right to self-defense,” which is “strongevidence that that is how the founding generation conceivedof the right.” 554 U.S. at 603. Also without any reference tothe home, Heller noted that “[a]ntislavery advocates routinelyinvoked the right to bear arms for self-defense.” Id. at 609.Charles Sumner’s famous “Bleeding Kansas” speech, quotedat length in Heller, can hardly be read without sensing itsvociferous declaration that the Second Amendment’s corereaches self-defense on the wide open spaces of the Americanfrontier: “Never was this efficient weapon [the rifle] moreneeded in just self-defense, than now in Kansas, and at leastone article in our National Constitution must be blotted out,before the complete right to it can in any way be impeached.”Id. (quoting Charles Sumner, The Crime Against Kansas,


May 19–20, 1856, in American Speeches: Political Oratoryfrom the Revolution to the Civil War 553, 606–07 (T. Widmered. 2006)); see also McDonald, 561 U.S. at 775 (“[O]ne ofthe ‘core purposes of the Civil Rights Act of 1866 and of theFourteenth Amendment was to . . . affirm the full and equalright of every citizen to self-defense.’” (quoting Amar, Bill ofRights, supra, at 264–65)).

Perhaps most tellingly, the Court in Heller ultimatelylikened the constitutional repugnance of restrictions onkeeping arms inside the home with that of restrictions onbearing arms outside the home. In striking down the Districtof Columbia’s ban on handgun possession in the home,Heller observed that the only restrictions that had historically“come close” to such a “severe” measure were laws thatunconstitutionally restricted the open carry of firearmsoutside the home in some states. 554 U.S. at 629 (citingNunn, 1 Ga. at 251; Andrews, 50 Tenn. (3 Heisk.) at 187;Reid, 1 Ala. at 616–17).

Thus, there can be no avoiding Heller’s—andMcDonald’s—admonition that the Second Amendmentguarantees the individual right “to use handguns for the corelawful purpose of self-defense.” McDonald, 561 U.S. at 768(quoting Heller, 554 U.S. at 630 (alteration omitted)); seealso Wrenn, 864 F.3d at 659 (“Whatever motivated theAmendment, at its core was the right to self-defense.”). Inturn, there can be no support for a cramped reading of theSecond Amendment that renders to “keep” and to “bear”unequal guarantees. As recounted at length above, both thetext of the Amendment and the relevant historical sourcesconfirm this understanding. The right to carry a firearmopenly for self-defense falls within the core of the SecondAmendment.


IV

Because the right to carry a handgun openly for self-defense lies within the “core” of the Second Amendment,Hawaii faces a steep burden in its attempt to justify theconstitutionality of section 134-9. Under our court’sframework, if Hawaii’s law “amounts to a destruction” of thecore right, it must be held “unconstitutional under any levelof scrutiny.” Silvester v. Harris, 843 F.3d 816, 821 (9th Cir.2016). And if it severely burdens (but does not destroy) thecore right, it still “warrants strict scrutiny.” Id.

Though it is doubtful whether Hawaii could prevail undereither standard, the unavoidable reality is that Hawaii’ssevere deprivation of the core right to carry a firearm inpublic can only be understood as amounting to a totaldestruction of such right. It is thus necessarilyunconstitutional.

A

Section 134-9 limits the open carry of firearms to people“engaged in the protection of life and property,” H.R.S.§ 134-9(a), i.e., “private detectives and security guards,” asdefined by the County of Hawaii’s implementing regulations,see Police Dep’t of Cnty. of Haw., Rules and RegulationsGoverning the Issuance of Licenses to Carry Concealed andUnconcealed Weapons 1 (Oct. 22, 1997). Even those luckyfew may carry firearms only when “in the actual performanceof [their] duties.” Id. at 10. There can be little question thatthe core Second Amendment rights of Hawaii residents areeffectively destroyed by such severe restrictions on who mayopenly carry a firearm.


Because the Second Amendment protects the right ofindividuals, not groups of individuals, to keep and to beararms, Heller, 554 U.S. at 595, the relevant question is theextent to which a law restrains the rights of a typical, law-abiding citizen. Wrenn, 864 F.3d at 665 (“[I]f the Amendmentis for law-abiding citizens as a rule, then it must secure gunaccess at least for each typical member of that class.”). Andsection 134-9 all but eliminates the right to open carry forsuch citizens. To restrict open carry to those whose job entailsprotecting life or property is, necessarily, to restrict opencarry to a small and insulated subset of law-abiding citizens.Just as the Second Amendment does not protect a right tobear arms only as an on-duty militia member, it surely doesnot protect a right to bear arms only as an on-duty securityguard. The typical, law-abiding citizen in the State of Hawaiiis therefore all but foreclosed from exercising the coreSecond Amendment right to bear unconcealed arms for self-defense.

It follows that section 134-9, by its own terms, “amountsto a destruction” of a core right and is therefore infirm“[u]nder any of the standards of scrutiny.” See Heller, 554U.S. at 628–29. The County may not constitutionally enforcesection 134-9’s limitation on the open carry of firearms tothose “engaged in the protection of life and property.”

Hawaii resists this conclusion by arguing that section 134-9 does not in fact limit open carry to security guards andthose similarly employed. Rather, Hawaii insists that “aprivate individual may be ‘engaged in the protection of lifeand property,’ even when it is not part of her job”—and thusthe statute is open to everyone, at least in appropriatecircumstances. In a vacuum, that might be a perfectlyplausible—even natural—way to read the words in the


statute. But in the real world, it is not how the State of Hawaiior its constituent counties have actually interpreted andapplied section 134-9.

Counsel for the County acknowledged as much at oralargument before the three-judge panel in this case, statingthat, to his knowledge, no one other than a security guard—orsomeone similarly employed—had ever been issued an open-carry license. Hawaii’s Attorney General, in a September2018 Opinion Letter on this very subject, likewise failed toprovide evidence that any of Hawaii’s counties had everissued an open-carry permit to even a single person notemployed in the security profession. See generally State ofHaw., Dep’t of Att’y Gen., Opinion Letter No. 18-1,Availability of Unconcealed-Carry Licenses (Sept. 11, 2018)[hereinafter Opinion Letter 18-1]. And the State has notshown that it has taken any action to remedy the putatively“incorrect” interpretation of section 134-9 that continues tobe enforced in Hawaii County and throughout the state.Indeed, it appears that no carry licenses have been issued toprivate, non-security guard citizens anywhere in the Statesince the issuance of the State’s 2018 Opinion Letter.See State of Haw., Dep’t of Att’y Gen., FirearmRegistrations in Hawaii, 2019, at 9 (Mar. 2020),https:/ /ag.hawaii .gov/cpja/fi les/2020/03/Firearm-Registrations-in-Hawaii-2019.pdf; State of Haw., Dep’t ofAtt’y Gen., Firearm Registrations in Hawaii, 2018, at 9 (May2019), https://ag.hawaii.gov/cpja/files/2019/05/Firearm-Registrations-in-Hawaii-2018.pdf.

In the County of Hawaii, the historical dearth of open-carry permits for private citizens is no mere “pattern orpractice.” It is a matter of official policy. Again, in its 1997regulations implementing section 134-9’s open-carry


permitting regime, the County created an application processthat is open only to “private detectives and security guards.”Police Dep’t of Cnty. of Haw., Rules and RegulationsGoverning the Issuance of Licenses to Carry Concealed andUnconcealed Weapons 1 (Oct. 22, 1997).17 Although theCounty now asserts that it does not “understand” theregulation to limit carry permits to such individuals, its 1997Police Department regulation remains on the books. Further,as Young rightly notes, “[t]he County of Hawaii . . . has not[since] issued any new regulations or even created anapplication form for private citizens.”

B

In the face of this damning factual record, both Hawaiiand the majority urge that we should simply look the otherway.

No thanks!

1

For its part, Hawaii argues that its actual enforcement ofthe statute is irrelevant because “the meaning of a state statuteis determined by its text, not by how a local governmentsupposedly applies it.” The case Hawaii cites for thatcontention, however, is wholly inapposite. In the citedpassage, the Hawaii Supreme Court simply recited the

17 Whereas the State now seeks to create ambiguity about whether itsstatute limits open carry to security guards and those similarly employed,there can be no such ambiguity that the County’s 1997 regulation doesexactly that. Accordingly, such a regulation is unconstitutional in its ownright.


anodyne administrative-law maxim that when a courtconducts de novo review of an agency’s statutoryconstruction, “the fundamental starting point for statutoryinterpretation is the language of the statute itself.” Del MonteFresh Produce (Haw.), Inc. v. Int’l Longshore & WarehouseUnion, Local 142, 146 P.3d 1066, 1076 (Haw. 2006) (internalquotation marks omitted). But ours is not an administrative-law case; it is a challenge to the constitutionality of Hawaii’ssevere restrictions on the right of individuals to carry firearmsin public. The pertinent question is not whether the County’sinterpretation of H.R.S. § 134-9 is adequately faithful to thestatutory text. Rather, the question is whether Hawaii’srestrictions on open public carry are adequately faithful to theSecond Amendment. And enforcement history illuminateswhether the State’s statute and the County’s regulation arelaws “which, under the pretence of regulating, amount[] to adestruction of the right.” Jackson, 746 F.3d at 960 (quotingHeller, 554 U.S. at 629).

2

Similarly, the majority contends that we may not considerthe enforcement history of H.R.S. § 134-9 because Young hassupposedly forfeited any as-applied challenge to the statute,limiting our review “to the text of the statute itself.” See Maj.Op. 25–31. This is simply wrong—and for several reasons.

For starters, the majority’s premise that Young’scomplaint outlined only a “facial” challenge to the statute isdubious. Young’s complaint challenged far more than thetheoretical facial validity of section 134-9. Unlike in manyfacial challenges, here section 134-9 has actually beenenforced against Young, and he claims that suchenforcement—i.e., the denial of his applications for an open-


carry permit—violated the Second Amendment. Indeed,Young alleged that his Second Amendment rights had beenviolated by the “[c]ombined” statutes, regulations, andactions of “the State of Hawaii, County of Hawaii[,] and theHawaii County Police Department and its Chief of Police.”More specifically, he alleged that the County hadunconstitutionally denied his permit applications even thoughthey “stat[ed] the purpose being for personal security, self-preservation and defense,” and he contended that carrypermits had been made available only to those who were“employed by a licensed private security company.”18 Thus,unlike a stereotypical facial challenge, Young’s claim doesnot “rest on speculation” about how the statute might beenforced, nor does it ask our court to “short circuit” theState’s “opportunity to implement [the statute] . . . [and] toconstrue the law in the context of actual disputes.” See Wash.State Grange v. Wash. State Republican Party, 552 U.S. 442,450–51 (2008). Young’s very point is that the State andCounty have construed and implemented the statute—againsthim—in a way that is unconstitutional.

18 The majority’s assertion that “Young did not set out [an as-applied]claim as an issue before our court in his panel appeal,” Maj. Op. 28, iseven more inaccurate. Young’s opening brief, filed in 2013, plainly states:“[Hawaii County Police] Chief Kubojiri’s failure to adopt policies whichcomport with constitutional guidelines has resulted in HRS § 134-9, asapplied to Mr. Young, to be an unconstitutional deprivation of hisconstitutional rights. In the alternative, if no guidelines could make thestatute constitutional then it is unconstitutional on its face.” And it is of nomoment that the panel opinion referred to “several . . . arguments” thatYoung had abandoned or waived on appeal. Id. (quoting Young, 896 F.3dat 1050 n.3). The panel expressly listed those claims that Young hadforfeited; Young’s as-applied challenge to Hawaii’s restrictions on hisability to carry a handgun openly was not one of them. See Young,896 F.3d at 1050 n.3.


Further, we cannot lose sight of the fact that Young filedhis complaint pro se—and, as the Supreme Court hasinstructed, “[a] document filed pro se is ‘to be liberallyconstrued,’ and ‘a pro se complaint, however inartfullypleaded, must be held to less stringent standards than formalpleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S.89, 94 (2007) (per curiam) (quoting Estelle v. Gamble,429 U.S. 97, 106 (1976)) (citations omitted). Here, Young’spro se complaint stated clearly, if inartfully, his theory thathis Second Amendment rights were violated by the combinedeffects of H.R.S. § 134-9 and the County’s actualenforcement thereof. Such a claim is clearly sufficient to putthe State and County’s record of enforcement of section 134-9 at issue.

More fundamentally, the majority’s contrary conclusionrelies on the erroneous notion that there is a bright-linecategorical distinction between facial and as-appliedchallenges. The Supreme Court has cautioned that “thedistinction between facial and as-applied challenges is not sowell defined that it has some automatic effect or that it mustalways control the pleadings and disposition in every caseinvolving a constitutional challenge. The distinction . . . goesto the breadth of the remedy employed by the Court, not whatmust be pleaded in a complaint.” Citizens United v. Fed.Election Comm’n, 558 U.S. 310, 331 (2010) (emphasisadded); see also Bucklew v. Precythe, 139 S. Ct. 1112, 1128(2019) (“The line between facial and as-applied challengescan sometimes prove ‘amorphous’ and ‘not so well defined.’”(citations omitted)); Richard H. Fallon, Jr., As-Applied andFacial Challenges and Third-Party Standing, 113 Harv. L.Rev. 1321, 1324 (2000) (“[T]here is no single distinctivecategory of facial, as opposed to as-applied, litigation. Rather,all challenges to statutes arise when a particular litigant


claims that a statute cannot be enforced against her. . . . [I]t ismore misleading than informative to suggest that ‘facialchallenges’ constitute a distinct category of constitutionallitigation.”). Indeed, whether a constitutional challenge isdescribed as “facial” or “as-applied” “does not speak at all tothe substantive rule of law necessary to establish aconstitutional violation.” Bucklew, 139 S. Ct. at 1127(emphasis added). And, at least in the First Amendmentcontext—which guides our analysis of “the extent to whicha challenged prohibition burdens the Second Amendmentright,” Jackson, 746 F.3d at 961—even where the bare text ofa statute is theoretically capable of competing constructions,we analyze a “facial” attack to the statute in light of how ithas actually been interpreted and applied. See, e.g., ForsythCounty v. Nationalist Movement, 505 U.S. 123, 131 (1992)(“In evaluating [a] facial challenge, we must consider thecounty’s authoritative constructions of the ordinance,including its own implementation and interpretation of it.”);Gooding v. Wilson, 405 U.S. 518, 524 (1972).

Regardless of its particular phrasing, the essence ofYoung’s claim is unquestioned: He contends that the Stateand County of Hawaii have enacted and enforced against himsweeping prohibitions on ordinary, non-security-guardcitizens’ right to carry a firearm openly in public, in violationof the Second Amendment. That claim necessarily questionsnot only the nature of the statute that Hawaii enacted butmoreover how that statute has been interpreted and enforcedby the responsible government officials. And our analysis ofsuch a claim surely does not turn on which ill-defined labelone might now attach to it. Cf. Bucklew, 139 S. Ct. at 1128(“To hold now, for the first time, that choosing a labelchanges the meaning of the Constitution would onlyguarantee a good deal of litigation over labels, with lawyers


on each side seeking to classify cases to maximize theirtactical advantage.”).

C

So, at least as informed by the draconian enforcementhistory of section 134-9, such law unquestionably destroysordinary Hawaiians’ freedom to carry a handgun for self-defense in public. But that understates the point. For even ifwe chose to ignore the enforcement history showing that theCounty has never issued an open-carry permit to a non-security-guard citizen, section 134-9 would still beunconstitutional on its terms.

The Second Amendment protects “the right of the peopleto keep and bear Arms”—not the right of a select group of“exceptional” people to keep and bear arms. U.S. Const.amend. II (emphasis added). And in Heller, the Court left nodoubt that “the people” refers to “all Americans.” 554 U.S. at580–81. “[I]f the Amendment is for law-abiding citizens asa rule, then it must secure gun access at least for each typicalmember of that class.” Wrenn, 864 F.3d at 665. Indeed,although “certain weapons or activities [may] fall outside thescope of the” Second Amendment, “certain people” do not.Kanter v. Barr, 919 F.3d 437, 452 (7th Cir. 2019) (Barrett, J.,dissenting).

Thus, for Hawaii’s measure to be constitutional, at thevery least, it must not destroy the right of the typical, lawabiding citizen to carry a gun in public for self-defense. By itsvery terms, section 134-9 plainly does just that—and does soeven if we set aside its requirement that firearms carriers be“engaged in the protection of life and property.” Thelanguage of the statute allows only those individuals who can


show “an exceptional case” or special “urgency” to beeligible to carry a gun. H.R.S. § 134-9(a).19 The HawaiiAttorney General’s 2018 Opinion Letter only exacerbated this

19 To be sure, Hawaii argues—and the majority intimates—thathistory countenances such an approach. Young’s interest in self-defense,they say, is merely “generalized,” whereas the Second Amendment and itsEnglish forbearers protected a right to open carry only in service of a“particularized” need for self-defense. See Maj. Op. 54–55. This putativedistinction, however, proves specious.

For example, the majority accepts the invitation of Hawaii’s en bancbrief to read Lord Coke as advocating the proposition “that the law did notallow public carry merely ‘for doubt of danger.’” See id. at 54–55; EdwardCoke, The Third Part of the Institutes of the Laws of England 161(London, R. Brooke 1797). But what Hawaii would pass off as a generalmaxim of English law is in fact a comment on the very particular andunusual case of Sir Thomas Figett. There, “doubt of danger” was held aninsufficient defense for Figett’s going armed “in the palace,” and “beforethe justice[s] of the kings bench.” Coke, supra, at 161–62 (emphasisadded). Ironically enough, Figett did assert a “particularized” threat inseeking to justify his carrying of a weapon, stating that he had concretereason to fear an attack from one “Sir John Trevet knight.” Id. The failureof Figett’s defense, then, had nothing to do with how “generalized” or“particularized” his interests in self-defense were, and everything to dowith the fact that he had gone armed in uniquely “sensitive places” wherecarry was categorically prohibited. Cf. Heller, 554 U.S. at 626.

Similarly, the majority reads Serjeant Hawkins as “recogniz[ing] thatthe . . . . desire for proactive self-defense was not a good enough reasonto go armed openly.” Maj. Op. 54. Yet this contradicts what Hawkinsactually wrote. In the treatise relied upon by Hawaii and the majority, heexpressly clarified that “no wearing of Arms is within the meaning of th[e]Statute [of Northampton],” even if “it be accompanied with suchCircumstances as are apt to terrify the People,” so long as one had“arm[ed] himself to suppress Rioters, Rebels, or Enemies” or “upon a Crymade for Arms to keep the Peace.” Hawkins, supra, at 136 §§ 9–10. Thatis to say, Hawkins placed “generalized” and “particularized” interests inself-defense on equal footing.


problem by offering “illustrative examples” of classes ofpersons whom the Attorney General “believe[s] . . . couldpresent a sufficient urgency or need for protection under thestatute,” such as political activists, state’s witnesses, privatesecurity guards, psychiatrists, physicians, attorneys, businessowners, entertainers, and bank employees. See Opinion Letter18-1, supra, at 8–9. But no matter the particular categories ofpeople who fall in or out of the State and County’s favor,Hawaii’s statute necessarily destroys the right to carry afirearm for self-defense for all “typical . . . law-abidingcitizens” who are not deemed to be “exceptional.” Wrenn,864 F.3d at 665. That would be no less true if we were to setaside the ample factual record showing that Hawaii has alsofurther extinguished the public-carry rights of those who arenot security guards.

In short, no matter how much one cares to look to H.R.S.§ 134-9’s troubling and well-documented enforcementhistory, we cannot escape the conclusion that it is“unconstitutional under any level of scrutiny.” Jackson,746 F.3d at 961.

V

The Second Amendment’s text, history, and structure—asinterpreted in light of the Supreme Court’s bindingprecedents—all converge on an unequivocal conclusion: Atits core, the Second Amendment protects the ordinary, law-abiding citizen’s right to carry a handgun openly for purposesof self-defense outside the home.

Despite an exhaustive historical account, the majority hasunearthed nothing to disturb this conclusion. At most, andafter great length, the majority arrives at the unexceptional


observation that the lawful manner of open carry hashistorically been regulated in varying and limited ways (forexample, by prescribing particularly dangerous guns that maynot be carried or particularly sensitive places into which gunsmay not be carried). But nothing in the history—both by myown read and as reported by the majority itself—suggests thatthe mere presence of some regulation of open carry wasunderstood to negate the underlying status of the right to opencarry, or to mean that such right could be altogetherextinguished for the typical law-abiding citizen. The majoritycites nothing that could justify such an extravagantinterpretation of the record of gun regulation in this country,and I do not share the majority’s eagerness to impart one byipse dixit.

Most alarming is the conjunction of today’s holding andour court’s earlier holding that the concealed carry offirearms in public is not protected by the Second Amendment“in any degree.” See Peruta v. County of San Diego, 824 F.3d919, 939 (9th Cir. 2016) (en banc). For the more than 60million people within the nine western states of this circuit,the combined effect of these two opinions is to remove allforms of public carry—whether open or concealed—from theprotections of the Second Amendment. In so doing, ourcircuit has not merely demoted “the right of the people to . . .bear Arms,” U.S. Const. amend. II, to the status of “a second-class right” but has extinguished its status as a rightaltogether. See McDonald, 561 U.S. at 780 (plurality op.). Itis no badge of honor that we now become the first and onlycourt of appeals to do so.

Accordingly, and for the reasons expressed above, Iwould hold that both H.R.S. § 134-9 and the 1997 Countyregulation destroy the core right to carry a gun for self-


defense outside the home and are “unconstitutional under anylevel of scrutiny.” Jackson, 746 F.3d at 961.20

To be sure, I do not reach this conclusion withoutappreciation for the real and serious problem of gunviolence—a problem which I do not take lightly, and whichthe State of Hawaii “has understandably sought to fight . . .with every legal tool at its disposal.” Wrenn, 864 F.3d at 667.And nothing in my analysis would prevent the State fromregulating the right to bear arms, for the Second Amendmentleaves the State with “a variety of tools for combatting [theproblem of gun violence], including some measuresregulating handguns.” Heller, 554 U.S. at 636. Yet, for betteror for worse, the Second Amendment does protect a right tocarry a firearm openly for self-defense in public—andHawaii’s near complete ban on the open carry of handgunscannot stand.

I cannot join an opinion that would flout the Constitutionby holding, in effect, that “in regulating the manner ofbearing arms, the authority of [the State] has no other limitthan its own discretion.” Reid, 1 Ala. at 616. While manyrespectable scholars and activists might find virtue in afirearms-carry regime that restricts the right to a privilegedfew, “the enshrinement of constitutional rights necessarilytakes certain policy choices off the table.” Heller, 554 U.S. at636.

I most respectfully dissent.

20 Because I would reverse the district court on Second Amendmentgrounds, I would decline to reach Young’s prior-restraint and due-processclaims.


R. NELSON, Circuit Judge, with whom CALLAHAN andIKUTA, Circuit Judges, join, dissenting:

I concur with Judge O’Scannlain’s dissent concluding thatHawaii Revised Statute 134-9 violates the SecondAmendment. If the statute is facially unconstitutional, it isalso unconstitutional as-applied. See, e.g., Powell’s Books,Inc. v. Kroger, 622 F.3d 1202, 1207 n.1 (9th Cir. 2010). Themajority, however, errs not only in holding the statute faciallyconstitutional, but also in rejecting Young’s as-appliedchallenge. See Hargis v. Foster, 312 F.3d 404, 410, 412 (9thCir. 2002) (noting the “inquiry does not end with [a] facialanalysis” and reversing and remanding on the as-appliedchallenge).

The majority summarily dismisses Young’s SecondAmendment as-applied claim with far less respect than wehave given other constitutional claims. See McDonald v. Cityof Chicago, 561 U.S. 742, 780 (2010) (plurality opinion)(recognizing the Second Amendment is not a “second-class”constitutional right). Indeed, the majority’s holding thatYoung failed to plead an as-applied challenge may be itslongest lasting legacy, as it effectively reverses several of ourprior cases. It will preclude a host of future as-appliedconstitutional challenges under the First, Fourth, Fifth, andEighth Amendments previously recognized by thiscourt—especially for pro se civil rights plaintiffs. Themajority should have at least remanded for the district courtto address Young’s as-applied challenge or allow him toamend his complaint.

I also write separately to highlight the brazenlyunconstitutional County of Hawaii (“County”) Regulationsapplying H.R.S. § 134-9. There should be no dispute that any


law or regulation that restricts gun ownership only to securityguards violates the Second Amendment. The CountyRegulations squarely present this issue. But the majoritysidesteps it relying on a theory never briefed by the partiesand not supported by Hawaii precedent. Because the CountyRegulations were the operative basis for denying Young apermit and remain legally enforceable, Young should beallowed on remand to challenge his denial under H.R.S.§ 134-9. Accordingly, I respectfully dissent.

I

Young brought both a facial and an as-applied challengeto H.R.S. § 134-9 and the County Regulations. He soughtgeneral relief—asking to strike down the statute—but alsopersonal relief—requesting to be granted a firearm permit. Moreover, he explicitly preserved his as-applied challenge inhis complaint, opposition to the motion to dismiss, and onappeal.

The district court erred by dismissing Young’s complaintwith prejudice while mischaracterizing his separate as-applied claim and not allowing him to amend his complaint. And the majority errs in concluding Young failed to plead anas-applied challenge. Young’s complaint pleaded that underH.R.S. § 134-9 and the County Regulations he was denied afirearm permit because he was not a security guard. Themajority should have, at a minimum, vacated the districtcourt’s order and remanded for the district court to addressthe as-applied challenge in the first instance or to allowYoung to amend his complaint.


As a threshold matter, Young was pro se when helitigated the motion to dismiss before the district court;1 thus,this court liberally construes his filings. Ross v. Williams,950 F.3d 1160, 1173 n.19 (9th Cir. 2020) (en banc). “Theobligation to construe pro se filings liberally means courtsmust frequently look to the contents of a pro se filing ratherthan its form.” Id.; see also Erickson v. Pardus, 551 U.S. 89,94 (2007) (per curiam). This obligation to give the pro secomplainant “‘the benefit of any doubt’” is heightened“‘particularly in civil rights cases,’” such as this one. Hebbev. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quoting Bretz v.Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc)).

This benefit of the doubt applies with even greater forcewhen considering whether a claim raises a facial challenge,an as-applied challenge, or both. See Real v. City of LongBeach, 852 F.3d 929, 934 (9th Cir. 2017) (considering bothfacial and as-applied challenges even where appellant “didnot clearly state to the district court whether his challengewas as-applied or facial”);2 Read v. Haley, 650 F. App’x 492,494 n.1 (9th Cir. 2016) (“Mindful that we construe pro sepleadings liberally, we view [plaintiff’s] claims as facialattacks that are not barred” even though plaintiff’s “prolix”

1 Young’s counsel appeared on December 21, 2012, after the noticeof appeal was filed.

2 Indeed, we held the plaintiff in Real, represented by counsel,brought an as-applied challenge though he had never applied for a permitand his complaint never mentioned the words “as-applied.” 852 F.3dat 934 (holding Real had standing to bring an as-applied challenge sincehe “alleged an intention” to undertake constitutionally protected activitybut “ordinances proscribe[d] his intended conduct”). Just like Young,Real stated in his response opposing the motion to dismiss that he broughtan as-applied challenge.


made it “understand[able] why the district court consideredhis Complaint to assert ‘as applied’ challenges” (emphasisadded) (citation omitted)); Morrison v. Peterson, 809 F.3d1059, 1062 (9th Cir. 2015) (considering both facial and as-applied challenges, though pro se litigant characterized hischallenge as only as-applied);3 United States v. Kaczynski,551 F.3d 1120, 1124 (9th Cir. 2009) (recognizing an as-applied claim even though pro se appellant “characterize[d]his claim as a purely facial legal challenge”); United States v.Kafka, 222 F.3d 1129, 1130 (9th Cir. 2000) (considering anas-applied challenge even where “it [was] unclear whetherKafka [was] making only a facial challenge . . . or whether he[was] also asserting an ‘as applied’ challenge”);4 Asselin v.Santa Clara Cnty., 185 F.3d 865 (9th Cir. 1999)(unpublished) (holding that the “complaint, charitably read,also allege[d] that the County’s policy was unconstitutionalas applied” where it asserted that the plaintiff had “merelydiscussed religion with the minor” and thus the “as-appliedchallenge [was] entitled to proceed past the pleading stage”).

This benefit of the doubt has greater force because “[t]heline between facial and as-applied challenges can sometimesprove ‘amorphous.’” Bucklew v. Precythe, 139 S. Ct. 1112,

3 Morrison’s complaint never used the words “as-applied” or “facial”and included only two sentences that could have raised a facial challenge. In his opposition to the motion to dismiss, Morrison only stated he waschallenging the statute as-applied.

4 The government’s brief argued that Kafka brought only a facialchallenge because “[t]he district court specifically inquired into theDefendant’s wish to present a case purely as a matter of law, or if hewished to make a factual record” and Kafka had “declined to present anyfacts.” Neither Kafka’s Opening Brief or Reply Brief ever used the words“as-applied.”


1128 (2019) (quoting Elgin v. Dep’t of Treasury, 567 U.S. 1,15 (2012)). “The label is not what matters.” John Doe No.1 v. Reed, 561 U.S. 186, 194 (2010) (noting whether thewords “as-applied” were used in a complaint is notdeterminative). A claim can “obviously ha[ve] characteristicsof both” types of challenges. Id. And “[a]s-appliedchallenges . . . may be coupled with facial challenges.”5 Fotiv. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998). Accordingly, “the distinction between facial and as-appliedchallenges is not so well defined that it has some automaticeffect or that it must always control the pleadings anddisposition in every case involving a constitutionalchallenge.” Citizens United v. Fed. Election Comm’n, 558U.S. 310, 331 (2010).

Rather, the “distinction . . . goes to the breadth of theremedy employed by the Court, not what must be pleaded ina complaint.” Id. (citation omitted). A court should look atthe “claim and the relief that would follow” to determine thetype of claim brought. See John Doe No. 1, 561 U.S. at 194. And a court should consider different types of challenges asthe “exercise of its judicial responsibility” demands. SeeCitizens United, 558 U.S. at 333. Thus, this court must lookto the substance of the complaint and the remedy to identifywhat type of claims are brought. See Isaacson v. Horne,716 F.3d 1213, 1230 (9th Cir. 2013). The majorityeffectively overturns our precedents and ignores SupremeCourt direction to establish a new vague standard for pleadingan as-applied challenge. See Maj. Op. at 27, 28–30.

5 It is far different when a party, represented by counsel, specificallypleads only a facial challenge and affirmatively disclaims any as-appliedchallenge. See Calvary Chapel Bible Fellowship v. Cnty. of Riverside,948 F.3d 1172, 1177 (9th Cir. 2020).


Under long-standing precedent, there is ample supportthat Young’s pro se complaint alleges both a facial and an as-applied challenge. Young argues he was denied a permit andthat this denial violated his constitutional rights. Crucially,he seeks multiple forms of relief: first, to strike down thestatute as part of his facial challenge; and second, to bepersonally granted a firearm permit as part of his as-appliedchallenge. See Citizens United, 558 U.S. at 331. Furthermore, he refers to himself and his efforts to gain afirearm permit numerous times throughout the complaint. See Foti, 146 F.3d at 635 (“An as-applied challenge contendsthat the law is unconstitutional as applied to the litigant’sparticular . . . activity.”).

As just a few examples, Young alleges:

· “Plaintiff, recently, on two occasions . . .applied for a personal permit . . . . On bothoccasions Plaintiff was denied a permit,by the Defendant Kubojiri, pursuant toH.R.S. 134-9, citing that ‘…only inexceptional cases or a demonstratedurgency…’, which is yet to be defined, theChief of Police ‘…may grant…’ a permit,subject to his personal opinion.”

· “Within the jurisdiction of Hilo Countyand according to its police administrator,it is a matter of routine procedure that aConcealed Carry Weapons (CCW) permitis not to be issued, but only upondemonstration of an actual menace andsubjected to the discretion of the localcounty Chief of Police.”


· “Plaintiff is denied and prohibited fromexercising his individual secondamendment right.”

· He suffered “irreparable emotional andphysical distress” as a result of the“present enforcement of H.R.S. 134-9 andH.R.S. 134-6.”

· “Plaintiff has a clear and unambiguousclaim of right to property in the SecondAmendment of the Constitution of theUnited States.”

And in his opposition to the motion to dismiss, Youngexplicitly challenged H.R.S. § 134-9 both “on its face and orthe application thereof,” showing his intent to bring both afacial and an as-applied challenge. Young also argues onappeal:

· In his 2013 Opening Brief, “ChiefKubojiri’s failure to adopt policies whichcomport with constitutional guidelines hasresulted in HRS §134-9, as applied toYoung, to be an unconstitutionaldeprivation of his constitutional rights.”6

6 As Judge O’Scannlain notes, the three-judge panel did not findYoung forfeited his as-applied challenge. O’Scannlain Dissent at 187n.18. To the extent that the majority believes otherwise, Maj. Op.at 29–30, “a party does not necessarily forfeit an issue by first raising it”in en banc proceedings. United States v. Hernandez-Estrada, 749 F.3d1154, 1160 (9th Cir. 2014) (en banc). Indeed, the “exercise” of our“judicial responsibility” dictates considering the as-applied challenge. See


· “Young challenged the law andregulations both facially and as-applied‘to the facts of’ his case,” citing CitizensUnited, 558 U.S. at 331.

· “At every stage of the proceedings,”Young, proceeding pro se, raised an as-applied challenge, which has beenpreserved on appeal.

· “Mr. Young’s claim that H.R.S. § 134-9 isunconstitutional both facially and as-applied by the County to Mr. Young.”

Young thus “brings a paradigmatic as-applied challenge,arguing that it is unconstitutional to apply the [Hawaii statuteand County Regulations] to him because, given all thecircumstances, his ability to” exert his Second Amendmentrights is “unduly constricted.” Hoye v. City of Oakland, 653F.3d 835, 857 (9th Cir. 2011).

Citizens United, 558 U.S. at 333. Particularly here, since “thesearguments are intertwined with the validity of the claim.” Engquist v. Or.Dep’t of Agric., 478 F.3d 985, 996 n.5 (9th Cir. 2007), aff’d, 553 U.S. 591(2008).

Moreover, the majority makes much of the fact that the three-judgepanel did not address Young’s as-applied challenge. Maj. Op. at 28. Butas the majority acknowledges, since the three-judge panel (rightfully) heldthe statute to be facially unconstitutional, the statute was “void in toto”and unconstitutional as-applied; thus, there was no need for the three-judge panel to address the as-applied challenge separately. See Maj. Op.at 26–27; Powell’s Books, 622 F.3d at 1207 n.1.


Despite these plain and consistently detailed allegationsand arguments, the majority asserts Young’s as-appliedchallenge is “[a]t best . . . buried in his complaint and not wellpleaded.” Maj. Op. at 28. It holds that Young’s arguments,presented repeatedly throughout Young’s complaint,opposition to the motion to dismiss, and on appeal, are not“specific[] and distinct[]” enough to permit review.7 Maj.Op. at 29–30. The majority’s summary conclusion is beliedby a plain reading of Young’s complaint and his subsequentfilings, as detailed above. And we have in numerous casesaddressed as-applied challenges in much thinner vehicles. See, e.g., Real, 852 F.3d at 934; Kaczynski, 551 F.3d at 1124. If nothing else, the fact that Young asked for a specific as-applied remedy in a firearm permit means he more thanadequately alleged an as-applied challenge. See CitizensUnited, 558 U.S. at 331. The majority’s contrary conclusionimpermissibly “invites pleading games.” Bucklew, 139 S. Ct.at 1128 (noting it “would only guarantee a good deal oflitigation over labels, with lawyers on each side seeking toclassify cases to maximize their tactical advantage”).

The majority thus offhandedly establishes a newheightened pleading standard for pro se civil rights litigantsthat is both legally unfounded and practically concerning. Maj. Op. at 29–30. The 35-year old case it cites to supportthis proposition, Miller v. Fairchild Industries, Inc., involveda represented party’s appellate brief, not a pro se litigant’s

7 The majority also characterizes Young’s pro se civil rightscomplaint as “lengthy and rambling.” Maj. Op. at 25 n.3. On the onehand, the majority thus criticizes Young’s pro se complaint for his verbosediction, and on the other, the majority faults Young for not allegingenough. Even besides this contradiction, such uncharitablecharacterizations are unhelpful to resolving this case.


first un-amended civil rights complaint. 797 F.2d 727, 738(9th Cir. 1986). Whether this heightened standard might beexpected of seasoned counsel, we have never applied it to prose citizens seeking to vindicate their constitutional rights.8 Erickson, 551 U.S. at 94 (“[A] pro se complaint, howeverinartfully pleaded, must be held to less stringent standardsthan formal pleadings drafted by lawyers.” (internal quotationmarks and citations omitted)). In any event, Young’svoluminous as-applied pleadings are far more than the “bareassertion[s]” the majority characterizes them to be. See Maj.Op. at 30.

Consider what this holding of the en banc court means:any time a government agency hides behind an opaque policyto deny someone a constitutional right, a pro se litigant isheld to some rigorous yet herein undefined pleading standardto even have his challenge considered in the first place. Themajority holding thus overrules many prior panel opinionsand ignores Supreme Court precedent. If Young’s pleadingshere are insufficient even to warrant consideration in decidinga motion to dismiss, then a host of pleadings in our priorcases are now no longer sufficient either. See, e.g., Real,

8 Though the majority pays lip service to the relaxed pro se pleadingstandard, the majority nevertheless applies Miller’s stringent “specific[]and distinct[]” standard—dealing with a represented party’s appellatebrief—to Young’s pro se complaint. Maj. Op. at 28–30. And the majorityexacerbates its error by inappositely relying on Greenwood v. F.A.A.,where the represented appellant raised an issue “for the first time onappeal.” 28 F.3d 971, 977 (9th Cir. 1994). The majority ignores theconsistently detailed allegations in Young’s complaint. Moreover, it alsoignores our duty to look at “the breadth of the remedy employed by theCourt” as the “exercise of its judicial responsibility” demands. CitizensUnited, 558 U.S. at 331, 333; see also Isaacson, 716 F.3d at 1230.


852 F.3d at 934; Kaczynski, 551 F.3d at 1124; supra at 197–98.

Indeed, the district court itself recognized that Youngchallenged the statute as-applied, noting “Plaintiff requests aninjunction against the enforcement of HRS Chapter 134.” Young v. Hawaii, 911 F. Supp. 2d 972, 984 (D. Haw. 2012). But the district court “erroneously treated the as-appliedchallenge brought in this case as a facial challenge,”Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir.2009), concluding Young “is actually challenging theconstitutional validity of Hawaii’s Firearm Carrying Laws. . . .” Young, 911 F. Supp. 2d at 984. In reality, Youngproperly pleaded both an as-applied and a facial challenge.

The district court erred by dismissing Young’s claimwithout considering whether he pleaded sufficient facts tosupport his as-applied challenge. See La. Mun. Police Emps.’Ret. Sys. v. Wynn, 829 F.3d 1048, 1063 (9th Cir. 2016)(“[C]ourts ruling on a motion to dismiss ‘must consider thecomplaint in its entirety, as well as other sources courtsordinarily examine when ruling on Rule 12(b)(6) motions todismiss . . . .’” (quoting Tellabs, Inc. v. Makor Issues &Rights, Ltd., 551 U.S. 308, 322 (2007))). “To the extent thatthe district court considered [Young’s] complaint to rest ona facial, rather than an as-applied challenge, . . . it erred.” SeeHoehne v. Cnty. of San Benito, 870 F.2d 529, 534 (9th Cir.1989).

Moreover, the majority faults Young, a pro se litigant, fornot pursuing reconsideration instead of appeal. Maj. Op.at 27. Yet we have never required even a represented party,let alone a pro se party, to seek reconsideration to preserve anargument for appeal. The majority acknowledges that Youngwas not required to seek reconsideration, but nonetheless


faults him for choosing to immediately appeal. Maj. Op.at 27 & n.5.

The majority punishes Young for asking us to review denovo the district court’s order viewing all allegations in thelight most favorable to him, instead of first attempting toconvince the district court his case fell under the “highlyunusual circumstances” warranting reconsideration. SeeGuenther v. Lockheed Martin Corp., 972 F.3d 1043, 1058(9th Cir. 2020) (citation omitted). The majority thus suggestsYoung should have “relitigate[d] old matters” beforeappealing, or else risk forfeiting his as-applied challenge. SeeExxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008)(citation omitted).

Again, consider what this holding means. A pro seplaintiff repeatedly raises an as-applied challenge in hiscomplaint and opposition to a motion to dismiss; it isrecognized by the district court, but then erroneouslycategorized only as a facial challenge upon final judgment. And we fault the pro se civil rights litigant for immediatelyappealing the final judgment instead of pursuingreconsideration. The majority’s conclusion lacks both legalauthority and equitable justification.

Additionally, it is not sensible here to affirm the dismissalof an as-applied challenge that the district court did notaddress in the first instance.9 This court need only decide that

9 The majority suggests it would “manufacture jurisdictional issues”to remand for the district court to consider the as-applied challengeerroneously labeled as a facial challenge. Maj. Op. at 28 n.6. Not so. Ourcourt has appellate jurisdiction over final judgments of the district court,including ones that “erroneously treated the as-applied challenge brought


an as-applied challenge was properly raised and should notaddress whether Young’s complaint met the 12(b)(6) standardin the first instance. See, e.g., CPR for Skid Row v. City ofLos Angeles, 779 F.3d 1098, 1111 (9th Cir. 2015); PlannedParenthood of Greater Wash. & N. Idaho v. U.S. Dep’t ofHealth & Hum. Servs., 946 F.3d 1100, 1111 (9th Cir. 2020)(“An appellate court should usually wait for the district courtto decide in the first instance.”); Puente Arizona v. Arpaio,821 F.3d 1098, 1110 (9th Cir. 2016) (remanding forconsideration of a pending as-applied challenge which“should be addressed in the first instance by the districtcourt”); Henry v. Cnty. of Shasta, 132 F.3d 512, 522 (9th Cir.1997), opinion amended on denial of reh’g, 137 F.3d 1372(9th Cir. 1998) (remanding an as-applied challengeerroneously dismissed by the district court because thechallenge “depend[ed] on questions of fact and law . . . thatthe district court did not address, [and thus] we prefer not todecide it initially on appeal” (citation omitted)).

But the majority apparently did reach the issue, holdingthat Young “never pleaded facts to support an as-appliedchallenge.” Maj. Op. at 27. The majority’s holding againdisregards Supreme Court precedent.

Young’s complaint alleged “sufficient factual matter,accepted as true, to ‘state a claim to relief that is plausible onits face.’” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

. . . as a facial challenge.” See Stormans, Inc., 586 F.3d at 1140; CPR forSkid Row v. City of Los Angeles, 779 F.3d 1098, 1111 (9th Cir. 2015)(remanding where district court did not address crucial part of as-appliedchallenge); Foti, 146 F.3d at 635, 640–42 (recognizing plaintiffs’ as-applied challenge even though the district court considered only the facialchallenge and expressly declined to consider the as-applied challenge).


(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007)). Young challenged how the County applied thestatute to deny his permit application in June 2012. Hisallegations were plausible based on the County Regulationsand legal grounds as reasonably understood at the time hefiled his complaint—alleging he had applied but was notgranted a permit because he was not a security guard, asrequired by the County Regulations. For example, Young:

· Challenged the denial of his permit due tothe “engaged in the protection of life andproperty” clause because “as used, [it]implies a person must currently be amember of a law enforcement agency oremployed by a private security company,licensed to do business in the State ofHawaii, and engaged in the employmentof protecting a paying third party’s lifeand property.”

· Stated that county police have“unbridle[d] discretionary authority todecide whether an applicant possesses an‘exceptional case’ or ‘sufficient urgency’to qualify for a permit to carry aconcealed or unconcealed firearm, withoutfurther identifying the parameters of theadditional requirement to the point wherePlaintiff knows whether or not he iswithin the boundaries of the law.”

· Argued “since Defendants collectivelyenforce H.R.S. 134 and 134-9 theirreparable injury claimed was both


threatened at time of Plaintiff’s filing ofcomplaint and continues to occur in thepresent instance.”

· Questioned “[h]ow does the HawaiiCounty Chief of Police Harry Kubojiriapply and enforce H.R.S. 134-9?”

Young pleaded he met the requirements of H.R.S. § 134-9in all other respects, including the provision of being“engaged in protection of life and property,” H.R.S. § 134-9,because he “applied for a personal permit, in accordance withHawaii Revised Statute (H.R.S.) 134-9(a)(c), . . . stating thepurpose being for personal security, self-preservation anddefense, and protection of personal family members andproperty.”10

Even under the majority’s view, we should have—at aminimum—remanded to allow Young to amend hiscomplaint. See Fed. R. Civ. P. 15 (courts “should freely giveleave [to amend] when justice so requires”). Indeed, Hawaiispecifically suggested this court remand to allow Young toamend his complaint. “Rule 15’s policy of favoringamendments to pleadings should be applied with extremeliberality,” Price v. Kramer, 200 F.3d 1237, 1250 (9th Cir.2000) (internal quotation marks and citation omitted),

10 This court should not decide in the first instance to dismiss Young’scomplaint based on a failure to plead according to the non-binding HawaiiAttorney General’s Opinion (“AG Opinion”) issued over six years afterhis complaint was filed—in response to the panel opinion upholding hisfacial challenge. Such positions taken purely for the sake of litigation areentitled to little, if any, weight. See Kisor v. Wilkie, 139 S. Ct. 2400, 2417& n.6 (2019).


“guided by the underlying purpose of Rule 15—to facilitatedecision on the merits rather than on the pleadings ortechnicalities,” Eldridge v. Block, 832 F.2d 1132, 1135 (9thCir. 1987) (internal quotation marks and citation omitted).

Thus, “a district court should grant leave to amend evenif no request to amend the pleading was made, unless itdetermines that the pleading could not possibly be cured bythe allegation of other facts.” Lopez v. Smith, 203 F.3d 1122,1127 (9th Cir. 2000) (en banc) (emphasis added) (internalquotation marks and citations omitted). Indeed, a “pro selitigant [is] entitled to procedural protections, including [the]right to amend [a] complaint unless futile.” Eldridge, 832F.2d at 1136 (emphasis added) (citation omitted); see alsoHoughton v. South, 865 F.2d 264 (9th Cir. 1988)(unpublished) (holding that the “policy of liberality underRule 15 for pro se plaintiffs” means “the district court shouldhave allowed Houghton to supplement his complaint . . . onremand from the first appeal” to “allege[] an ‘as applied’challenge”). Remand is particularly warranted here sinceYoung has challenged the operative County Regulations. Given the changed legal circumstances, including Hawaii’srecent AG Opinion, Young is more than entitled to amend hiscomplaint.

Young’s as-applied challenge should not have beenignored by the district court or the majority to “foreclose afuture as applied challenge.”11 See Nordyke v. King, 319 F.3d

11 Without remand, Young could suffer claim or issue preclusion ifthis court affirms the dismissal of his complaint with prejudice. SeeLittlejohn v. United States, 321 F.3d 915, 919–20 (9th Cir. 2003) (“Claimpreclusion prevents the relitigation of claims previously tried anddecided.” (citation omitted)); Scafidi v. Las Vegas Metro. Police Dep’t,


1185, 1190 n.3 (9th Cir. 2003). Indeed, the First, Third,Fourth, Seventh, Eighth, and D.C. Circuits have held that alitigant may be able to raise an as-applied challenge even topresumptively lawful firearms prohibitions. Binderup v. Att’yGen. U.S., 836 F.3d 336, 343–48 (3d Cir. 2016) (en banc);Schrader v. Holder, 704 F.3d 980, 988–89 (D.C. Cir. 2013);United States v. Moore, 666 F.3d 313, 316–17 (4th Cir.2012); United States v. Torres-Rosario, 658 F.3d 110, 113(1st Cir. 2011); United States v. Williams, 616 F.3d 685,691–92 (7th Cir. 2010); see also United States v. Woolsey,759 F.3d 905, 909 (8th Cir. 2014) (hearing as-appliedchallenge to § 922(g)(1) but not mentioning Heller).

The district court’s failure to consider the as-appliedchallenge separately, even after dismissing the facialchallenge, was error. The majority compounds this error byrefusing to remand the case to allow consideration—oramendment—of an as-applied challenge. See Norse v. Cityof Santa Cruz, 629 F.3d 966, 970 (9th Cir. 2010) (en banc)(noting we have rejected a facial challenge but remanded theas-applied challenge); Menotti v. City of Seattle, 409 F.3d1113, 1156 (9th Cir. 2005) (rejecting the facial challenges butreversing and remanding the as-applied challenge). In doingso, the majority errs by not “exercis[ing] . . . its judicial

966 F.3d 960, 963 (9th Cir. 2020) (“Issue preclusion, or collateralestoppel, bars successive litigation of an issue of fact or law actuallylitigated and resolved in a valid court determination essential to the priorjudgment.” (internal quotation marks and citations omitted)). Thus, it isunclear whether he could bring his complaint anew given the currentdisposition of the case. See Outdoor Media Dimensions Inc. v. Crunican,202 F.3d 278 (9th Cir. 1999) (unpublished) (affirming a facial challengebut “remand[ing] so that the judgment can be amended to state that it iswithout prejudice as to an ‘as applied challenge’”).


responsibility” and considering the as-applied challenge. SeeCitizens United, 558 U.S. at 333.

II

Though consideration of the as-applied challenge is betterleft to the district court, the plain unconstitutionality of theCounty Regulations governing Young’s application for afirearm permit warrants mention. In 1997, the Countypromulgated its Regulations governing its issuance of firearmlicenses under H.R.S. § 134-9. Police Dep’t of Cnty. ofHaw., Rules and Regulations Governing the Issuance ofLicenses 10 (Oct. 22, 1997). Hawaii does not dispute that theCounty Regulations remain on the books. The County maychoose to enforce them at any time.

Hawaii’s counsel at en banc oral argument argued the AGOpinion (issued six years after Young filed his complaint)controls to the extent the County Regulations are inconsistentwith the AG Opinion. And Hawaii asserts that this courtshould defer to the County’s interpretation of its ownRegulations.

There has been no preemption under Hawaii state lawhere and the non-binding AG Opinion does not control,despite the majority’s suggestion to the contrary. ContraMaj. Op. at 19–22. “[A] municipal ordinance may bepreempted pursuant to HRS § 46–1.5(13) if (1) it covers thesame subject matter embraced within a comprehensive statestatutory scheme disclosing an express or implied intent to beexclusive and uniform throughout the state or (2) it conflictswith state law.” Richardson v. City & Cnty. of Honolulu, 868P.2d 1193, 1209 (Haw. 1994). There is no expresspreemption clause in the state statute at issue here, nor any


clear intent to preempt regulations such as the County’s. Seegenerally H.R.S. § 134 et seq.; see also Syngenta Seeds, Inc.v. Cnty. of Kauai, 842 F.3d 669, 675 (9th Cir. 2016) (“[T]heHawaii Supreme Court has presumed that a county’s exerciseof police power is within its delegated authority so long as thelegislature did not ‘clearly intend[ ] to preempt the field ofregulation.’” (quoting Haw. Gov’t Employees’ Ass’n v. Maui,576 P.2d 1029, 1038 (Haw. 1978))).

The parties do not argue such preemption exists either.12 And because the AG Opinion is legally non-binding, it cannotpreempt the County Regulations as “state law.” See CedarShake & Shingle Bureau v. City of Los Angeles, 997 F.2d 620,625–26 (9th Cir. 1993).

Furthermore, deferring to the County’s interpretation ofits own Regulations advanced in its amicus brief is notwarranted under the “limits inherent” in administrative lawdoctrine. See Kisor, 139 S. Ct. at 2415. Deference is properonly when an agency’s interpretation of its own regulationssurvives a gauntlet of conditions. First, the regulations mustbe “genuinely ambiguous.” Id. (citations omitted). Second,

12 Hawaii did not address this position in any of its briefs; it merelystated in response to questioning at oral argument that the CountyRegulations are inconsistent with the AG Opinion’s reading of the statute. It did not specify whether or how supposed inconsistency with a non-binding legal opinion meets the preemption requirements under H.R.S§ 46–1.5(13). In any event, arguments regarding statutory questions“raised for the first time at oral argument” are waived. Perez-Guzman v.Lynch, 835 F.3d 1066, 1075 n.4 (9th Cir. 2016). “That course seemsdoubly wise because, based on oral argument, it appears that thegovernment knew of this potential argument, but may have deliberatelychosen not to raise it.” Ctr. for Investigative Reporting v. United StatesDep’t of Justice, 982 F.3d 668, 686 (9th Cir. 2020).


the agency’s interpretation must be “reasonable.” Id.(citation omitted). Third, “a court must make an independentinquiry into whether the character and context of the agencyinterpretation entitles it to controlling weight.” Id. at 2416(citations omitted). Fourth, “the agency’s interpretation mustin some way implicate its substantive expertise.” Id. at 2417. “Finally, an agency’s reading of a rule must reflect fair andconsidered judgment . . . .” Id. (internal quotation marks andcitations omitted). An interpretation that is a “convenientlitigating position” or a “post hoc rationalizatio[n]” does notmerit deference. Id. (internal quotation marks and citationomitted). “The general rule, then, is not to give deference toagency interpretations advanced for the first time in legalbriefs.” Id. at 2417 n.6 (citation omitted). The County’sinterpretation does not meet any of these requirements. Thus,the County’s interpretation, “advanced for the first time” inits amicus brief, is not worthy of any deference. See id.;Christopher v. SmithKline Beecham Corp., 567 U.S. 142,155–56 (2012).

An independent review of how the County Regulationshave “been interpreted and applied by local officials”demonstrates the County unconstitutionally enforces H.R.S.§ 134-9 through its Regulations. See Calvary Chapel, 948F.3d at 1177. The County Regulations were promulgated togovern “the granting of authorization for the carrying ofweapons as provided by section 134-9, Hawaii RevisedStatutes.” And the County Regulations’ title, “Rules andRegulations Governing the Carrying of Concealed Weaponsand the Carrying of Weapons by Private Detectives andSecurity Guards,” explicitly applies H.R.S. § 134-9 only tocertain occupations. Under the County Regulations, then,open carry is proper only when the license-holder is “in theactual performance of his duties or within the area of his


assignment.”13 The Second Amendment “surely does notprotect a right to bear arms only as a security guard.” Youngv. Hawaii, 896 F.3d 1044, 1071 (9th Cir. 2018), reh’g enbanc granted, 915 F.3d 681 (9th Cir. 2019). Thus, theCounty Regulations are “infirm [u]nder any of the standardsof scrutiny.” Id. (internal quotation marks and citationomitted). The County Regulations are faciallyunconstitutional, and Young alleges they have beenunconstitutionally applied to deny him a permit under H.R.S.§ 134-9. The majority’s failure to grapple with the CountyRegulations in any meaningful way suggests an unwillingnessto apply the Second Amendment with the respect it deserves.

III

Even if the Hawaii statute were facially constitutional asthe majority holds, Young’s challenge should be remanded toaddress or develop the as-applied challenge. Therefore, Irespectfully dissent.

13 Hawaii defends the County Regulations only with a conclusoryassertion that the “regulation does not limit open-carry licenses to securityguards,” because “[t]he language of the County’s regulation mirrors thelanguage of the state statute.” This interpretation is flatly contradicted bythe plain language of the County Regulations. The statute does notinclude the regulatory language cited here, nor is the phrase “securityguards” included in the statute’s title, as it is in the County Regulations’title.

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